Constitutional Reform (Prerogative Powers and Civil Service etc.) Bill [HL]

Lord Rooker: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Constitutional Reform (Prerogative Powers and Civil Service etc.) Bill, has consented to place her Prerogative and Interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Lord McNally: My Lords, what about the Government?

Lord Lester of Herne Hill: My Lords, I am very grateful to the noble Lord, Lord Rooker, for keeping me out of grave breach of a constitutional convention.
	I beg to move that this Bill be now read a second time. It is designed to strengthen our system of parliamentary democracy by making the Executive more accountable to Parliament. I am grateful that so many noble Lords of such great experience and authority will participate in this debate. With no disrespect to the noble Lord, Lord Bassam of Brighton, one might have hoped that the Secretary of State for Constitutional Affairs would have made himself available to add his own unique authority to the proceedings.
	Several noble Lords have expressed regret at not being able to be here, including the noble Lords, Lord Armstrong of Ilminster, Lord Butler of Brockwell, Lord Carter and Lord Brennan. I know that the noble Lords, Lord Armstrong and Lord Butler, are particularly supportive of the parts of the Bill dealing with the Civil Service. Perhaps I may also thank Kate Beattie, my parliamentary legal officer, who drafted the Explanatory Notes, which will make the position clear to those who find that the drafting does not do that itself.
	The Bill places under parliamentary authority the executive powers—

Lord Armstrong of Ilminster: My Lords, perhaps I may intervene briefly to say that I said to the noble Lord, Lord Lester, that I was unlikely to be able to be here today, but, as you see, I am. If the noble Lord, Lord Maclennan, allows me, I will intervene in the gap.

Lord Lester of Herne Hill: My Lords, once more, I am kept off the grass. It is always particularly enjoyable when mistakes are made by elderly Queen's Counsel in this House—I have noticed—who are notoriously bad on anything to do with the procedure, practice or customs of the House. The Bill places under parliamentary authority the executive powers exercised by Ministers by virtue of the Royal prerogative, including treaty making and going to war. It puts on a statutory footing the basic principles on which the Civil Service is based and the ground rules governing the relationships between Ministers, civil servants, special advisers and Parliament. It establishes a procedure for the approval of some key public appointments, and it provides for direct public access to the Parliamentary Commissioner for Administration—the Parliamentary Ombudsman.
	Each of those proposals has been raised in previous Private Members' Bills that have won considerable support in this House and beyond. But on each occasion, the response of the present Government has been negative. When the Minister replies, we shall discover whether spring shoots of glasnost and perestroika are peeping above the ground during the transition from one Prime Minister to another.
	Gordon Brown, wrote encouragingly this week in the Guardian that,
	"Britain is ready to shape a constitutional settlement . . . forging what will become a new compact between the local and the national, and between the executive and the legislature".
	This Bill is an element in such a compact. It does not seek to strengthen direct democracy by giving more power to the people. It is about representative democracy and parliamentary sovereignty, not popular sovereignty.
	The principle of parliamentary supremacy is a fundamental principle of our unwritten constitution. According to that hallowed British principle, the Executive are accountable to Parliament rather than to the sovereign. But, as Lord Hailsham of St Marylebone famously observed in referring to our system as an "elective dictatorship", traditional British theory does not take account of the fact that, instead of Parliament controlling the Executive, the Executive usually control Parliament—or, at any rate, the House of Commons. What are termed Royal prerogatives are in fact Executive prerogatives—the prerogatives of Ministers of the Crown, derived from the divine powers of kings, now worn informally by Ministers in fashionable designer clothing.
	A central question raised by this Bill is: who should be sovereign—Parliament or the Executive? Another question is whether our present Parliament is willing to take the theory of Parliamentary sovereignty seriously by translating it into political and legal reality. The principle on which the Bill is based is that in our modem democratic society Parliament rather than the Executive should be sovereign, as was envisaged by those who made the constitutional settlement in 1688. That principle is shared by the Commons Public Administration Select Committee, chaired by Tony Wright MP, to whom and to whose work I pay a very warm tribute.
	The Bill is neither radical nor republican. Launching the Conservative Party's new Democracy Task Force, its new leader, David Cameron, said:
	"Giving Parliament a greater role in the exercise of . . . [prerogative] powers would be an important and tangible way of making government more accountable".
	I agree, and I welcome the fact that Ken Clarke's Democracy Task Force will consider the very matters which are the subject of this Bill, and which are core values of Liberal Democrats and of many in the Labour Party; namely, parliamentary accountability for treaty and war-making powers, the Civil Service, and public appointments. It is those common values that informed the Cook-Maclennan agreement on constitutional reform and we need to draw on them again across the parties in developing the next stage of constitutional reform.
	I turn briefly to the Bill. Part 1 places under the authority of Parliament executive powers exercisable by Ministers by virtue of the Royal prerogative. Special provision is made for treaty making and war powers. Treaties reach into every nook and cranny of our lives. It is anomalous that Parliament has almost no role in the process of ratification of important treaties and it is done entirely under the prerogative. There is of course parliamentary scrutiny of EU legislation, but there is no equivalent scrutiny for treaties generally, as the Wakeham commission noted in its report on Lords reform, and this Government have failed to give effect to the Wakeham recommendations. On war powers, it is an anomaly that there is no requirement that parliamentary authority must be sought before we wage war.
	Clause 1 deals with the executive powers that are to be placed under the authority of Parliament within two years of the coming into force of the Bill. It excludes rights and powers that belong to the Queen personally or to any other member of the Royal Family. Clause 3 enables Parliament to approve treaties before they are ratified and to secure parliamentary approval before members of the Armed Forces are sent into combat. Clause 4 establishes a committee of both Houses to review the circumstances in which executive powers are exercised. It needs to be read with Schedule 1.
	The time is long overripe to put the Civil Service on a statutory footing. I am particularly pleased that the noble Baroness, Lady Prashar, is in her place to express her views on the matter. She is a very distinguished recent First Civil Service Commissioner. It is now long due that British citizens, like the citizens of other parliamentary democracies, have a politically neutral Civil Service appointed on merit and without political interference or control by partisan special advisers—and I was once a partisan special adviser myself.
	The ideas reflected in Part 2 on the Civil Service follow the recommendations of the Northcote-Trevelyan report on the organisation of the permanent Civil Service in 1854, of the Cook-Maclennan agreement and the more recent recommendations of the Committee on Standards in Public Life in its ninth report of April 2003. In November 2004 the Government published a draft Civil Service Bill and a related consultation document. However, they were still not convinced of the need for legislation and merely wished,
	"to consult on whether legislation is a necessary and desirable step".
	Some 15 months later, no progress has been made. The noble Lord, Lord Butler of Brockwell, who as I have said regrets that he cannot be here today, has recently spoken publicly about his disappointment that the Government have not fulfilled their promise to bring in a Civil Service Act.
	Part 2 creates a framework for the Civil Service structure in England, Wales and Scotland. The Wicks Committee recommended that the Civil Service Commissioners should continue to be responsible for ensuring that the merit principle is properly applied and that the commissioners should be granted powers and facilities to investigate on their own initiative and to report on the operation of the Civil Service recruitment system as it concerns the application of the principle of selection on merit. That is exactly what the Bill does.
	Under Clause 6, selection to the Civil Service must be by merit on the basis of fair and open competition, except where it is otherwise expressly provided for in the Act. Clauses 7 and 8 set up the Civil Service Commission and outline its duties. Clauses 15 and 16 and Schedule 3 grant powers to the commissioners to enable them to investigate and report. Clause 10 makes it the duty of each Minister of the Crown to uphold the integrity and impartiality of the Civil Service, and to uphold the independence and impartiality of the Civil Service Commission.
	Clause 13 provides that the Minister for the Civil Service shall issue codes of conduct for civil servants and for special advisers, and to set out the constitutional framework within which they work and the values that they are expected to uphold. The draft code must be published and representations sought from the Civil Service Commission. The draft code must then be laid before both Houses of Parliament. The Cabinet Secretary and the First Civil Service Commissioner have recently launched a consultation on a new Civil Service Code. While the new draft code contains some improvements, it does not alter the constitutional basis of the Civil Service and the code, which remains the exercise of prerogative power.
	Special advisers are currently appointed by Ministers to the Civil Service under powers conferred by the Civil Service Order in Council 1995, as amended. The number of special advisers did not vary much for 20 years from Harold Wilson's time as Prime Minister, and at the beginning of 1997 there were 38 in government. But there are now 78 special advisers, no fewer than 24 of whom are assigned to the Prime Minister. Up to three special advisers may exercise executive powers over civil servants. In June 2005 the Government amended the Civil Service Order in Council by stealth, without making any Statement in Parliament or public announcement. Among other changes, special advisers will now be able to provide what is known as "assistance" to Ministers, as distinct from providing only advice. Sir Alistair Graham, chair of the Committee on Standards in Public Life, strongly criticised the Government's secretive approach and observed that:
	"The revision lays the Prime Minister open to the suggestion that he is strengthening the mechanisms through which personnel can be recruited into the Civil Service outside the normal merit-based arrangements".
	The Bill would not preclude the use of special advisers, but Clause 11 provides that no special adviser may manage, direct or issue instructions to a civil servant in the discharge of that civil servant's public functions. Under the Bill, each special adviser will be under a duty not only to uphold the integrity and impartiality of the Civil Service but also to act at all times with honesty and integrity. Clause 12 requires an annual report on the appointment, role and responsibilities of special advisers.
	Part 3 gives effect to the recommendations on nationality in the Public Administration Committee's draft Civil Service Bill. Clause 17 identifies these restrictions, dating back to the Act of Settlement 1700, which prevent persons born outside the UK being employed in parts of the Civil Service, and directs whether they should be revoked, repealed, omitted or disapplied. Clause 18 sets out various powers to impose new nationality requirements.
	The Delegated Powers and Regulatory Reform Committee has criticised Clause 18 on the basis that it allows rules to be made by a Minister of the Crown or an officer of the Crown but does not require them to be laid before Parliament. That is a fair criticism. The Bill can be readily amended in Committee to allow any new nationality rules to be subject to the negative resolution procedure.
	Let me pause for a moment and say that, like the noble and learned Lord, Lord Howe of Aberavon, who was kind enough to write to me about this, I regret that all this needs to be codified. Unfortunately, however, times have changed, and I think that many in the House will agree that codification is now necessary.
	Part 4 concerns the procedure for making certain public appointments. It is not satisfactory that appointments to key offices such as the Parliamentary Commissioner for Administration and the chair of the new Commission for Equality and Human Rights are made by Ministers without any parliamentary advice or consent.
	The important office of Commissioner for Public Appointments was established in December 1995 as a direct result of a recommendation in the first report of the Nolan committee. The commissioner is appointed by the Queen under the Public Appointments Order in Council 2002. Clause 21 puts the office of Commissioner for Public Appointments on a statutory footing. Clause 22 provides for a public appointments committee, to be drawn from Members of the House of Commons. Clause 19 provides that both the commissioner and the committee must be consulted before certain public appointments, specified in Clause 20, are made.
	Part 5 creates a public right of direct access to the Parliamentary Commissioner for Administration. This will provide a direct avenue for members of the public to make complaints about administrative failure and neglect. It is a measure of practical importance, which I promote in the interests of active citizenship and improved accountability of government.
	The parliamentary commissioner is an officer of the House of Commons and can undertake an investigation only at the request of an MP. The commissioner reports the result to the MP. That is the so-called MP filter, which fetters our Parliamentary Ombudsman and has no equivalent in any other democracy in any other part of the world. Part 5 does not abolish the MP filter but creates a dual mechanism for access to the ombudsman by maintaining the filter and by introducing direct access by members of the public.
	Direct access to the Parliamentary Ombudsman or equivalent officer by members of the public is allowed in most other democratic countries that have such an institution—in fact, all, to my knowledge. There is direct access to the Health Service Commissioner for England and the Local Government Commissioner. The current Parliamentary Ombudsman, Ann Abraham, has expressed her support for this modest legislative change.
	I much look forward to the debate and I commend the Bill to the House.
	Moved, That the Bill be now read a second time.—(Lord Lester of Herne Hill.)

Lord Archer of Sandwell: My Lords, I offer my warm congratulations, and not just conventionally, to the noble Lord, Lord Lester, not only on presenting this Bill but on initiating this debate. I am happy to declare myself a supporter of the Bill, although I hope that that will not be taken as committing me to every word in the draft.
	The noble Lord has deployed the case for the Bill with his usual care and skill, and nothing would be gained by my seeking to improve on his presentation. So I hope your Lordships will forgive me if I devote the time available to anticipating some of the difficulties which may be urged and exploring some of the challenges which may await us. Indeed, one of the benefits which the noble Lord has conferred on us is the opportunity to consider some of the issues which arise. In the interests of brevity, I propose to confine my remarks to armed conflict and peacekeeping operations.
	Constitutional reform rarely presents itself spontaneously to the mind. I am aware that the noble Lord has been urging some of these reforms for a very long time, but I think it was the tragic saga still unfolding in Iraq which has evoked so much debate inside and outside Parliament. The fourth report of the House of Commons Public Administration Committee, to which the noble Lord referred, is an example. I am particularly indebted to the directors of three NGOs—the One World Trust, the Federal Trust for Education and Research and Democratic Audit at the University of Essex—for the thoughtful report they have published under the title Not in my Name. I should declare an interest as president of the One World Trust.
	Given all that, it would be a sad reflection if, while these questions were being discussed outside Parliament, there was no discussion in the Chambers of the two Houses, hence my gratitude to the noble Lord, Lord Lester.
	First, the pressures on our time ensure that none of us can be well informed across the whole spectrum of human knowledge. For Members of the other place, the greater part of lobbying from their constituents is related to matters nearer home; there are rarely many votes to be earned by time spent on international relations. In your Lordships' House, our greatest contribution is normally cited as the scrutiny of texts, and international affairs do not present so many occasions for that as do domestic affairs. I hope that the Bill may help to redress that in due course if we are charged with the scrutiny of treaties.
	Parliament has not acquired a reputation for harassing governments about their foreign policy. I have been re-reading the series of very entertaining lectures by A J P Taylor entitled, The Trouble Makers. For me, two lessons emerged. First, for much of our history over the past 300 years, governments have considered themselves better qualified than the parliamentary Benches to conduct foreign affairs because they were the shamans and the priests who carried within their breasts the accumulated wisdom of the Foreign Office. Like shamans everywhere, they tried to ensure that that wisdom should not be widely disseminated.
	Of course, international diplomacy consists largely in not letting others know all that is in your mind, so there was a ready-made reason for not sharing their plans with Parliament. At best, Parliament discovered what had transpired when the process was complete. I appreciate that that is sometimes inevitable, but it does not facilitate parliamentary control nor, indeed, widespread understanding of the Government's problems and how they propose to address them. The Government might actually benefit if we were better informed.
	The second lesson is that the accepted wisdom of the establishment is not always endorsed by the outcome of their policies. What the dissenters are saying now becomes the accepted wisdom of the future. If I may put it in the words of A J P Taylor:
	"Today's realism will appear tomorrow as shortsighted blundering. Today's idealism is the realism of the future".
	We sometimes need to make the best hand we can at learning as we go along. But first there must be a need to relax the culture of secrecy. Perhaps the Government's first task is to assist parliamentarians with the information we will require for our new mandate. I hope that the good will of the Government will be in evidence.
	At best, it is not easy to provide up-to-date information about an ongoing and fluid situation, but that does not provide governments with an exemption from trying. The intelligence on which Ministers and diplomats act cannot always be disclosed. They must respect the need to conceal the sources. The Government are to be congratulated on the publication of the dossier of September 2002. That was the first occasion on which a government had made public a report by the Joint Intelligence Committee. I do not believe that there was a deliberate intention to mislead, though the report may not have been published had it not been thought to lend support to the Government's case.
	Normally, reports of the JIC were intended to be read by people who were accustomed to reading intelligence reports. They would have appreciated that intelligence, by its very nature, is tentative and incomplete. They would have understood that weapons of mass destruction vary substantially in kind, size and effect. The Government must now have learned that what is informative for one readership may be misleading for another.
	We are at the beginning of what may transpire to be an extended learning curve. Furthermore, if the requirement for parliamentary authority is to bite, Parliament may need to break through the deference which it has traditionally shown to those who conduct our international relations. "If you knew what I know" is an insidious syndrome. I fear that the Bill will encounter the criticism that, even had it been on the statute book at the outset of the Iraq crisis, it would not have prevented the Government pursuing the course on which they were determined. Parliamentary authority would have been forthcoming. There were debates in another place on 26 February and 18 March 2003. There were some persuasive dissidents, but, on each occasion, the Government were accorded a substantial majority for their policy. In corresponding debates in your Lordships' House, serious concerns were expressed, but there were no Divisions. It is clear—and I speak as a dissident—that had the Government required a formal endorsement, it would have been forthcoming. Growing into a new responsibility and flexing one's muscles on appropriate occasions is usually a gradual process.
	I have one further concern. The burden of all the discussion consequent on the invasion of Iraq has been the idea that the function of Parliament is to act as a brake on precipitate action. Sometimes what may be needed is not a brake but an accelerator. During the Rwandan genocide, the politicians and the diplomats considered and discussed; many delegates to the Security Council awaited instructions from their governments; national governments pondered the risks; and when the council called for the deployment of armed forces, some states waited to see what other states would do. Meanwhile, the civilian population suffered casualties at the rate of three times the number of casualties sustained in New York on 11 September 2001 and suffered them every day for 100 days. It will not be easy to draft legislation which would enable Parliament to stimulate a government into action, but there may be procedural reforms which could help avert another Rwanda.
	None of this is an argument against the Bill; indeed, it is an argument for proceeding to a Committee stage. The United States appears to find the equivalent provision in its own constitution a practical and valuable requirement. If the Bill is awarded a Second Reading, the Committee stage promises to be an interesting experience. I would like to read the political commentaries 10 years from now.

Lord Mackay of Clashfern: My Lords, I too congratulate the noble Lord on introducing this Bill and on its wide scope. It may be some encouragement to him, with regard to the Government's attitude, that the Queen's consent seems to have been signified at a comparatively early stage of the proceedings in this Bill.
	Since this Bill has emanated from the Front Bench of the Liberal Democrat Party, it may be appropriate to offer my congratulations to Sir Menzies Campbell on his election as leader of that party. It is the second occasion in recent times that a United Kingdom party has chosen its leader from among the members of the Faculty of Advocates. I am very sorry that the first of them, John Smith, was cut off prematurely from the role to which he had been elected. I wish Sir Menzies every success in the challenging role of leading the Liberal Democrat Party.
	Some parts of this Bill are clearly and urgently required. I speak particularly of the part relating to the position of special advisers. I was honoured to be some 14 years in government and I had no experience whatever of special advisers. The noble Lord, Lord Lester of Herne Hill, was one some little time back and therefore speaks with a certain experience. However, it is time that this branch of executive power is brought under constitutional restraint. The way of doing that which is proposed in this Bill strikes me as suitable.
	I am glad that the noble Lord, Lord Sheldon, is going to speak today. I associate myself in advance with what he says because I have heard him speak on this subject previously. I have every reason to think that his views and mine are close.
	So far as public appointments are concerned, I am glad that the noble Baroness, Lady Prashar, with her unique experience and talent in this area, is going to speak after me. One recent development in relation to some areas of public appointment which troubles me is a multiplication of officials whose job it is to see that others are doing their job properly. For example, as your Lordships know, a judicial appointment commission has recently been set up to appoint judges, but another commission exists above that to see that the first commission does its job properly. The Minister is in some place above that. This kind of development is apt to dilute the direct responsibility of the Minister to Parliament. If I share my responsibility, I am able to share the blame if something goes wrong. There is a lot to be said for individual, personal responsibility in government. Where something goes wrong in the service for which a Minister is responsible, that Minister is directly responsible to Parliament. That doctrine is in danger of being diluted by a multiplication of officers whose job it is to supervise others under ministerial responsibility.
	I shall spend the rest of the time available to me on dealing with the relationship that is specified in the first part of the Bill, "Parliamentary Authority for Executive Powers". My understanding is that one of the fundamental responsibilities of Parliament is to bring the executive to account for all their actions, including those which are under executive powers. Therefore, there may be some question about whether Clause 3 is appropriate, because it states in advance:
	"In respect of any particular exercise of executive powers, the general rule is that appropriate parliamentary authority shall be regarded as provided by virtue of this subsection".
	In other words, those who are holding the executive to account are giving their authority in advance to what the executive are going to do. It is a bit difficult to hold somebody to account if you are going to approve in advance what he is going to do, so I doubt the wisdom of that particular way of putting the matter. I see the desirability from some points of view in executive control of certain prerogative acts; the example that has been highlighted is that of going to war.
	I had in mind some of the difficulties that the noble and learned Lord, Lord Archer of Sandwell, referred to. If you share responsibility with Parliament for going to war, when something goes wrong there is a degree of feeling that you have been supported in that decision by Parliament, so Parliament shares some responsibility for the outcome. There is, of course, a certain degree of restriction or restraint on prerogative powers in relation to going to war by the budgetary control of the Ministry of Defence. Parliament has the ultimate authority over the budget of the Ministry of Defence, which will no doubt be affected by the operation of going to war.
	The difficulty to which the noble and learned Lord, Lord Archer of Sandwell, referred, which I shall put in my own words, is the difficulty of laying before Parliament, at the time when the decision is required on whether to go to war, the information available to the executive on that aspect of the matter. The Foreign Office and security services have been referred to but, in view of my own interest in the matter, I refer also to the position of the law officers. The opinion of the noble and learned Lord the Attorney-General was taken in relation to the Iraq war and a parliamentary Answer was given; then there was a great degree of concern that there was some other opinion that the noble and learned Lord the Attorney-General had given. Your Lordships will remember that there was a good deal of discussion about that in the media.
	I asked the noble and learned Lord about the matter in this House, and I said that I thought that if there was any such thing it would be good from his point of view if it was released, and he said—in a very effective put-down, so far as I was concerned—that he thought more of the importance of the state's interest than of his own personal situation. I accept that, of course; the only thing was that in the heat of a general election, it appears that the importance to the nation of keeping it secret suddenly became less important, and it was released by Downing Street in the middle of the general election campaign.
	If Parliament is to be involved with responsibility for going to war, it must have full disclosure of that kind of information. It is questionable to what extent that will be practical in the interests of this particular move.

Lord Lester of Herne Hill: My Lords, I shall explain one matter to the noble and learned Lord. It is probably because of the drafting that it is not clear, but I shall explain how the prerogative provisions are meant to work. First, under Clause 1, Parliament becomes king, rather than the king; in other words, the prerogatives are placed under Parliament. Then what happens is that there is a standstill period of two years during which nothing changes, except when one deals with matters such as treaties and the Civil Service. Then there is to be an oversight committee, which is quite well explained in the Explanatory Notes, which will review the defined prerogative powers and decide what is to be done about them. This is a transitional mechanism to ensure that the executive are given time to explain the prerogative powers, and Parliament is then able to give approval on a particular basis.
	It is not the Bill's intention to give a blank cheque to the executive, clothed in parliamentary authority, to exercise prerogative powers. On the contrary, the principle behind the Bill—and I am sorry if it is not clear—is for Parliament to assert its authority but to give the executive time to identify the prerogative powers. I hope that I have clarified rather than obfuscated the position.

Lord Mackay of Clashfern: My Lords, so far as I am concerned, it is clarification indeed—but I had understood that point, in fact. However, I am grateful to the noble Lord for making his explanation generally available, in case I had not understood it. But the point remains that the theory is that Parliament will authorise and have the responsibility for ultimately authorising prerogative acts. That is the question that I want to address—but my 10 minutes are up, although that includes the noble Lord's intervention, of course.

Lord Kingsland: The time is unlimited.

Lord Mackay of Clashfern: My Lords, a note at the foot of the speakers' list assures me that if the House is going to rise at four o'clock, I should stop within the 10 minutes, and I certainly propose to do that. These are my concerns about the Bill. I congratulate the noble Lord on bringing it forward. Indeed, as the noble and learned Lord, Lord Archer, said, there are very important issues to be considered, and this is a very good opportunity to consider them.

Baroness Prashar: My Lords, I propose to confine my remarks to those parts of the Bill that relate to the Civil Service and—if I may clarify this for the noble and learned Lord, Lord Mackay—not public appointments, because there is a separate Commissioner for Public Appointments. I do so having recently completed my term of office as the First Civil Service Commissioner and having waited in vain for the Government to announce the results of the consultation exercise that they initiated in November 2004 on a Civil Service Bill.
	I begin by thanking the noble Lord, Lord Lester of Herne Hill, for achieving something that the Government seem to find so difficult—the introduction of a Bill that would place the Civil Service on a statutory footing and directly under parliamentary oversight. I also applaud his efforts to strengthen what he calls representative democracy and parliamentary sovereignty.
	I strongly support legislation to entrench in statute the key values of the Civil Service and the role of the Civil Service Commission, and to clarify the respective roles of Ministers, special advisers and civil servants. The Civil Service has, quite rightly, embarked on a programme of reform in response to changing demands but, at a time of rapid change, there is a need more than ever to ensure that the core values of the Civil Service, which are neither incompatible nor peripheral to the process of change, are embedded in statute.
	By placing the constitutional position of the Civil Service, as distinct from its daily management, under the oversight of Parliament; by providing for the respective roles and responsibilities of Ministers, political advisers and civil servants to be clearly defined within the overall constitutional framework and subject to independent monitoring; and by placing the Civil Service more directly under the oversight of Parliament, we will provide an important reassurance about the continued impartiality of the Civil Service and its enduring values. I am also of the view that the scope of any Bill dealing with the Civil Service should not be too prescriptive or drafted in a way which would inhibit or impede its evolution as an organisation, because one argument against a Civil Service Bill is that it would affect the organisational development of the Civil Service. I take the view that, if you disentangled the two, you would entrench the constitutional position in statute and free the Civil Service to develop as an organisation.
	There are five aspects of the Bill on which I would like to comment very briefly. First, it is important that the legislation reinforces the status of the Civil Service Commissioners as an independent body of people concerned with the maintenance of an effective and politically impartial Civil Service. To some degree this is met by the Bill, in that it provides for the appointment of the First Civil Service Commissioner by agreement with the opposition parties. However, additional reassurance about the commission's independence and political impartiality would, I think, be offered if the Bill also provided that appointment panels for the First Commissioner were chaired by someone independent of government and comprised a majority of people who were independent of government.
	Secondly, any Bill must clearly set out the role of the commissioners in ensuring that the key recruitment principle of selection on merit on the basis of fair and open competition is applied to appointments to the Civil Service. It should also enable the commissioners to allow appointments to be made outside of this principle in certain limited circumstances, as is currently the case.
	It is important, however, that the legislation does not prescribe how the commissioners will undertake their function in detail. They need to be firm on principle but flexible in practice. The flexibility inherent in the recruitment code means that the commissioners can respond to changing circumstances and situations without in any way compromising principles. For example, with regard to the principle of openness, additional advice on the use of the internet for advertising posts has recently been incorporated. Generally commissioners want to encourage innovation and experiment within the framework of the recruitment code. I am pleased, therefore, that the Bill supports that approach.
	Thirdly, the way the Civil Service code has been promoted by the departments has been inadequate. That has been the case ever since its introduction in 1996. It has often been omitted from departments' induction programmes, and I found that too many staff, new entrants and old hands alike, seemed totally unaware of the values it describes and of what to do should they find themselves being asked to act in a way that is inconsistent with the role of the civil servant. As the noble Lord, Lord Lester, said, work has recently been undertaken on turning the code into something much more accessible and readable, but that is only a start. Against a background of change and greater movement of staff, it is critical that the code is continually promoted, not just as something civil servants turn to when things go wrong, but rather as a living document that sets up the constitutional framework within which they work and the values they are expected to uphold. There is an important role here for the commissioners in monitoring whether departments positively promote the code.
	Fourthly, I am concerned that, however well the code is promoted in future, civil servants will still find it difficult to raise issues under the code. At present the commissioners do not have the power to initiate their own inquiries; they have to wait for someone to appeal. I therefore support the part of the Bill that gives Civil Service commissioners the power to initiate inquiries, rather than having to wait for an appeal from an individual civil servant under the code. Finally, I believe it is quite consistent in a statutory framework that provides for parliamentary oversight of Civil Service standards for the commissioners to report to Parliament annually on their work. It is right that they account for their work and are examined on it, and I am glad to see that provision in the Bill.
	In conclusion, we all agree that the Civil Service is a public asset. It exists in the public interest, and it is in the public interest that we maintain a Civil Service that transcends the interests of any one administration. We must avoid legislation in this area becoming a political issue, because the issues raised under the Bill affect us in the public interest. When I have spoken in the past, I have recommended that we should set up a joint committee of both Houses that might be established to take forward some of the considerations that would be most appropriate, and avoid it becoming a political issue. I hope the Government will give a clear indication today of when they might bring forward legislation on the Civil Service, or that they might support the noble Lord's Bill.

Lord Sheldon: My Lords, it is of course conventional to congratulate and thank those who bring an important issue to the House, but the work done by the noble Lord, Lord Lester, in producing this Bill was considerable. The effort that has been put into it must receive our gratitude and admiration.
	The question we have to ask is: why has no Civil Service legislation been enacted by the Government? For eight years, year after year, we have had promises to bring in a Civil Service Bill. I have been urging the Government to say when that will come, and I have received assurances that it will happen eventually. We know the reality here: they do not want that Civil Service Bill, because it will lay down certain rules that a number of people are not too happy about. But we do want the Bill, because we have seen the decline of the Civil Service over the past few years, which has been a serious matter indeed. The Civil Service has declined from the ideals we maintained, from the time of the implementation of the Northcote-Trevelyan report 150 years ago right up to the past 20 or 30 years, and year after year we have seen that decline continue.
	The Northcote-Trevelyan reforms created standards, and not just for the Civil Service. It went much wider than that. Those standards transmuted into a number of official bodies, and even into certain public companies, because there were enormous advantages to introducing them. The last fundamental reform based upon a thorough study was the Fulton report, which brought about a substantial change by removing 1,400 classes of civil servant. In the messengerial class, for example, there were the ranks of messenger, superior messenger and top messenger; there were classes all over the service. We ended that. But, importantly, the report still respected the Civil Service ethos, its abilities and its role of seeing to the efficient and effective running of the country. An important part of the Bill of the noble Lord, Lord Lester, deals with much of that.
	The Bill also deals with special advisers, an area where we have seen most important changes over the past few years. The Fulton report supported the use of special advisers as people who could bring experience and expertise into the Civil Service, as well as their political affiliation. That was an advantage to the service. Special advisers played a useful role, and we have seen their numbers increase in recent years. In 1974, as Minister for the Civil Service, I had the task of approving the special advisers' salaries, which ranged from the higher salaries of Nicky Kaldor, Tommy Balogh and even Jack Straw, among others, to a few who received salaries of less than £3,000 a year, which, even with the difference in money values at that time, was pretty low. Still, I had no objection to any of those, so they went through.
	Clause 11(3) says that,
	"No special adviser may manage, direct or issue instructions to a civil servant in the discharge of that civil servant's public functions".
	That is an improvement on the previous Bill, sponsored by the noble Lord, Lord Lester, of 18 December 2003, which said that no special advisers may exercise executive powers. He has made the wording more precise, which is an advantage. Special advisers played a useful role in government in bringing in outside expertise. They were people of some standing, brought in because they had something to contribute. They worked well with civil servants, who had respect for their abilities. The Civil Service welcomed them and accepted them. The advisers had their own political affiliations, and were useful to Ministers. That was what the Fulton committee had had in mind.
	The situation has now changed. In the ninth report of the Committee on Standards in Public Life, Professor Hennessy says:
	"the clout, as it were, of the permanent Civil Service advisers is much diminished compared to some of the special advisers".
	The noble Lord, Lord Lipsey, who I see in his place, added to that by comparing the Administration of James Callaghan with the current one and saying:
	"the current administration work with special advisers in departments in a way we did not".
	That shows how the situation has changed fundamentally from what we had in mind all those years ago, from Northcote-Trevelyan right up to our own time in political life.
	Mike Granatt, in paragraph 7.12 of the report, states:
	"There can be confusion, and I think this is one of the concerns that arises in times when things do not work well, that the special adviser may become a gatekeeper, and that civil servants do not have access to the Minister to provide advice, they merely become the recipient of instructions, one way or the other".
	That is the way that the role of special advisers has fundamentally changed; rather than offering expertise and information, they become rather more prominent in the work of departments.
	In paragraph 7.14, the committee recommends that,
	"special advisers should be separated out as a category of government servant distinct from the Civil Service and that this should be part of the legislation",
	which is discussed later on. Those are important recommendations indeed.
	My opinion is that no special adviser should exercise power over civil servants. As the noble Lord, Lord Lester, has pointed out, there were 38 special advisers in 1987, and there are 78 now, 24 of whom work for the Prime Minister. That is more than assistance and advice; it is a sort of involvement that we never thought special advisers would have. They should not exercise that power over civil servants. We have been promised again and again over the past eight years a Civil Service Act. We need one to deal with the centralisation of power and to sort out the problems including those of the Civil Service. That is the most important aspect of this debate.
	What we have here is a situation where the kind of people who are brought in have greater power over the Civil Service, which means that the civil servants themselves have less. The civil servants are the basis of how governments operate. Of course special advisers have a role, but they should not be between the Government and Ministers and the Civil Service because that diminishes the role of Civil Service members themselves.
	Civil servants have difficulty with governments in power for several Parliaments. If it is a short Parliament, they retain their powers. If it is a long Parliament, they become distorted. With a lengthy Administration, civil servants have to modify their independent role. We have had two long-term governments recently and we have seen the effect that that has had on civil servants. Ministers may learn much about government because as they carry out their duties they learn how to handle matters rather better, but civil servants also need to be less dependent on them in how they maintain something of their role as guardians of the public interest. That is the important thing we need to consider today.

Lord Brittan of Spennithorne: My Lords, first, I crave the indulgence of the House for the fact that I will not be able to stay to the end of the debate. I have informed both the noble Lord, Lord Lester, and the usual channels, who have kindly said that they do not object.
	I warmly welcome the Bill and almost all the key provisions in it. I share with almost everyone who has spoken the feeling that we owe an immense gratitude to the noble Lord, Lord Lester, for taking so much trouble and bringing the Bill to the House.
	It is an important Bill although it is rightly and inevitably limited in scope. By that I mean that it is not in any sense an inevitable step towards a written constitution. Those who have hesitations about a written constitution need not in my view have hesitations about this Bill. I do not think that the Conservatives, whether with a large or a small "C", should be troubled by the fact that it controls the exercise of the royal prerogative. It does not curb powers genuinely exercisable by the Crown, but does control the exercise of powers which are in practice exercised by the Government in the name of the Crown.
	I think it is important to be clear that that does not affect powers that need to be exercisable by the Crown itself, which in effect remain the power to dissolve Parliament and the power to appoint a Prime Minister. The exercise of those powers by the Crown is, of course, itself circumscribed by convention. But a residual power genuinely exercisable not on the advice of a Prime Minister is very important to deal with a situation where the result of an election or other political changes makes it unclear who the next Prime Minister should be or a situation where the exercise by a Prime Minister of the right of dissolution may be abused; for example, if he has not really effectively won an election and wants immediately to dissolve Parliament to have another go. It is important that the right to exercise the prerogative should be retained.
	The most important but the least spectacular feature of the Bill is to put the Civil Service on a proper statutory basis. It has long been called for, it has been long resisted, and it is definitely overdue. The broad framework set out in the Bill seems to me to be substantial and persuasive. The only particular point that I would single out for comment is the one relating to special advisers, where I not only agreed with but warmed to the points made with great force by the noble Lord, Lord Sheldon, just recently. Clause 11(3) is very welcome in making clear that special advisers may not,
	"manage, direct or issue instructions to a civil servant".
	That is an area where there has rightly been great suspicion of abuse in recent years.
	I would however go further than the Bill currently provides. I believe that it is important to limit the total number of special advisers, perhaps to do so in a flexible way, but to have some parliamentary control in a legislative form on that issue as well. As has been said and shown, there are now very many more special advisers than there were and there are far too many. I very much agree with the noble Lord, Lord Sheldon, that special advisers can be useful and probably even essential in today's world if they perform a unique political role and above all work with the grain of the system. My experience as a Minister was that they had to do that because they were only a handful and unless they secured the confidence of the civil servants they could not actually do the job for the Minister that they wanted. If they become too numerous, as they have become, instead of genuinely performing that role they become an over-mighty elite corps who regard themselves as the guardians of political correctness, and that inevitably threatens the proper role of an independent Civil Service.
	Another extremely important part of the Bill is the provision that treaties have to be given parliamentary approval, in the case of the most important ones by the affirmative procedure before ratification. The web of international commitments that we enter into is in today's world constantly getting more extensive and more complex. I would not commend the procedure operating in Denmark whereby the government's handling of every step in negotiations on European legislation is controlled by parliament, but in a democratic society the right to give the ultimate say should be exercised by Parliament. It is not acceptable for a Government to be able to say, as has been known to happen, "We've already entered into an internationally binding commitment and you must therefore now approve it by giving legislative effect to what we have committed ourselves to and you must do whatever is necessary to make it possible for that to happen". That is unacceptable and savours of parliamentary blackmail.
	Still more important than the provision on the treaty right is the provision requiring parliamentary approval for direct participation in any war, international armed conflict or international peacekeeping activity. It is more important, but again in my view is fully justified. I understand the difficulty of governments having to disclose all the information upon which they are making decisions but all I can say is that the experience of recent conflicts, and most notably of the Iraq conflict, leads me to the view that the national interest is far more damaged by inadequate disclosure than by excessive disclosure. Indeed, I cannot think of a case where excessive disclosure has ever led to that damage. In practice, of course, a government could not survive if Parliament did not support military action that had already been taken, but it is unreal and savours of blackmail of Parliament for a government to demand support only when British forces are already either engaged or massively committed.
	In the case of real emergency the Bill permits the Government to take action without parliamentary approval and has to justify it subsequently. I would go further and require not just a statement of reasons but actual subsequent parliamentary approval even if by then the scales were so loaded in favour of that being given for the reason that I have already mentioned. One of the reasons I say that is that in practice the curious fact is that today's wars seem to be increasingly "voluntary" in the sense that they are not a response to a sudden attack but a conscious decision to take military action in a particular situation. In that situation, parliamentary approval should be a real check. What may be more difficult is the precise definition of "war" or "international armed conflict". I suspect that that may need further discussion in Committee.
	Finally, I welcome the proposals to make certain public appointments subject to parliamentary approval by the Public Appointments Committee. The list is actually rather a modest one although I appreciate that the Bill makes provision for its possible extension. I hope that that will be exercised or that there will be amendments even at this stage, including other appointments which are not covered in the present draft of the Bill.
	What I do not quite understand is why membership of the Public Appointments Committee provided for in the Bill is confined to Members of the House of Commons while membership of the Executive Powers Review Committee is to be drawn from both Houses of Parliament. It seems to me that it would not be excessively ambitious for this House to be included in the pool from which members of the Public Appointments Committee could be drawn.
	I very much hope that there will be cross-party support for the highly desirable reforms put forward in the Bill. I welcome the fact that the new leader of the Conservative Party has nodded very strongly in that direction. I believe that the Bill, when enacted, will significantly improve the governance of the United Kingdom and add a very welcome enhanced degree of parliamentary accountability which is appropriate to today.

Lord McNally: My Lords, I thank the noble and learned Lord, Lord Mackay, for his extremely generous good wishes to Sir Menzies Campbell, which I shall give to him when I see him in Harrogate later today. I am sure that the noble and learned Lord, Lord Mackay, will be aware than an earlier Ming dynasty was particularly rich and successful. We look forward to similar success.
	On the tributes to the noble Lord, Lord Lester, I can do no better than draw the House's attention to the spread of speakers today. Often when an initiative is taken by noble Lords on one Bench, noble Lords on other Benches are conspicuously absent. The spread of speakers today is very interesting. There are four from the Labour Party, four from the Conservatives, three from the Cross Benches and three from the Liberal Democrats. If you consider the experience of law officers, Cabinet Ministers, permanent under-secretaries and chairmen of the Civil Service Commission, you will see that an extremely rich galaxy of talent and experience is put at the disposal of the House today. In addition, there are one or two speakers, such as the noble Lord, Lord Lipsey, and me, whose main claim to fame is that we were once special advisers.
	When I first came to this House, I served on the Select Committee on the public service chaired by the noble and learned Lord, Lord Slynn, and on the Select Committee on freedom of information. However, the battle honour of which I am most proud is that I was also a member of the Cook-Maclennan committee that looked at constitutional reform—the joint committee of Labour and Liberal Democrats before the 1997 election. I am extremely pleased that my noble friend Lord Maclennan will sum up from the Liberal Democrat Benches.
	The other thing that I am pleased about is that the author of a statement which I often quote has already spoken today. I refer to the noble Lord, Lord Sheldon, who famously said that the two great gifts bequeathed by the 20th century to the 21st in Britain were the BBC and the Civil Service. We may still have to battle for the integrity of both. Today we are concentrating on the Civil Service.
	It is worth remembering the circumstances of Cook-Maclennan. It was a shared analysis by both Labour and Liberal Democrats that our system of government needed radical reform if it was to be fit for purpose in the 21st century. It was the Cook-Maclennan report which gave the radical impulse to the first term of new Labour government after 1997: the Human Rights Act; freedom of information; devolved government for London, Wales and Scotland; PR in devolved government and Europe; the first stages of Lords reform; and the Jenkins commission on voting reform for Westminster. We on the Liberal Democrat Benches still see Cook-Maclennan as work in progress.
	By contrast, one gets the impression that the Government now see constitutional reform as a damage limitation exercise. Indeed, it is doubtful whether we would see either the Human Rights Act or the Freedom of Information Act passed today. There is no indication that the Government share either the sense of urgency or the radical impulses which motivated Cook-Maclennan and were reinforced by the recent Power report under the noble Baroness, Lady Kennedy—another voice we miss today.
	The concern that motivated Cook-Maclennan, and is reinforced by the Power commission, is of a dangerous disconnect between government and governed. Turnout at elections and public apathy and cynicism, particularly among the young, have reached dangerous levels. Democracies need participating democrats to make them work. Governance at all levels needs the respect and confidence of the governed, yet the Prime Minister in particular seems to be cocooned in a world of unreality.
	I make no comment about the Jowell affair; I have great respect for the Minister concerned. I say only this. I remember that Hugh Dalton quit ministerial office because some Budget secrets appeared in the stop press of a London newspaper. When I was at university, we were told that Sir Thomas Dugdale took ministerial responsibility for the Crichel Down affair—an action of his own department of which he was not aware.
	Today the Ministerial Code lies in tatters and there is no public confidence in the Prime Minister's stewardship of these matters. Is it any wonder? Advice on key matters affecting probity in governance from the Committee on Standards in Public Life, the Electoral Commission and respected Select Committees of Parliament are rejected or ignored. The noble and learned Lord, Lord Mackay, referred to the cavalier way in which the Attorney-General's advice was first secret and then made public when politically expedient. Last night we had the pre-spin of what the Cabinet Secretary had said on the Jowell affair. Mr Geoff Hoon even appeared on television explicitly saying that the Cabinet Secretary had exonerated Ms Jowell, when in fact his report said no such thing. The whole matter—as has gone on for years—had been pre-leaked and spun to the press with no idea of a Statement to Parliament. We have had internal inquiries followed by exoneration, which give an impression of ultimate responsibility in government that would not pass muster as oversight of a parish council.
	There are some good people in the Labour Party and there are still some radical impulses on the Government Benches. But there really is a stench of decay about the Blair administration and its obsession with wealth and celebrity, and pelf and place, which frankly makes one weep. As for the culture of secrecy, rather than being banished from Whitehall, it is safe and well and sitting in the back of various ministerial limos. Hence the need for this Bill, which should have graced the Queen's Speech of a third term Labour Government. Like other Lester initiatives before it, I have every confidence that one day it will see the light of day as the law of the land. As my noble friend Lord Lester has made clear, the proposals on the Royal prerogatives have nothing to do with the powers of the Queen and a great deal to do with the anachronisms and loopholes being used as a fig leaf by Ministers to protect certain of their actions from full parliamentary scrutiny.
	A number of Members more expert than I am have talked about war powers, which I will not dwell on for too long. Getting responsibility for war powers, as a number of Members have said, is not the end of the matter. It will always be difficult to assess these matters. Again looking to history, we see that Sir Anthony Nutting, who was right about Suez, had his ministerial career ended, whereas Selwyn Lloyd, who misled Parliament, ended up as Speaker. History has some strange stories to tell. The powers given by this Bill on prerogatives, war making and treaties are all welcomed by those who want to see powers of scrutiny and accountability extended.
	Unlike my noble friend Lord Lester, I am glad to see the noble Lord, Lord Bassam, on the Bench. I am sure that we will hear how eager the Government are to have a Civil Service Bill, in spite of the fact that, as the noble Lord, Lord Sheldon, has indicated, all the news from the Downing Street sofa is that we will get one over the Prime Minister's dead body. The noble Lord, Lord Bassam, is the Trevor Bailey of Front-Bench politics. He is a man who can keep his end up and stay at the crease for days on end without scoring or even attempting a run. What worries me is the body language of the Prime Minister. There are the same vibes as those that used to come from time to time from Mrs Thatcher, as she was then—if only he could get more of his private sector chums into government, with a get-up-and-go, can-do approach, all would be well.
	The noble Baroness, Lady Prashar, referred to the programme of reform that is now under way. We all welcome attempts to bring greater efficiency and productivity into the public services. We welcome the Government's initiatives to deliver greater diversity to all levels of the Civil Service, not least to permanent secretary level. I was struck by a statement made by Anne-Marie Lawlor, the director of the leadership and development strategy for the Civil Service, who said:
	"We know that graduates want to come and work for us because they think we are a good employer, but most importantly they want to make a positive difference to society".
	My heart rejoiced at reading that. Some nine years ago, the Select Committee on which I served under the noble and learned Lord, Lord Slynn, concluded that in the British Civil Service there was a distinctive public service ethos, which was massively in the public interest to nurture and preserve. That is the gift that the noble Lord, Lord Sheldon, talked about, which has as its roots the Northcote-Trevelyan principles of political neutrality and appointment and promotion on merit.
	Like Prime Ministers before him, the Prime Minister pulls on the levers of power and nothing happens. So in his frustration he packs Downing Street with special advisers staffing a variety of Orwellian delivery units. Across the board, despite some of today's criticisms, most special advisers operate much as they have done since 1974. It is in No. 10 that their powers have been extended, as the noble Lord, Lord Lipsey, pointed out in his evidence to the Committee on Standards in Public Life. The need for the protections contained in this Bill comes from the No. 10 experience. The role given to Alastair Campbell must never be repeated, combining political propaganda with government information as it did.
	I agree with the noble Lord, Lord Sheldon, that there are problems from long periods of one-party government. In the opposite direction from special advisers, I believe that neither the noble Lord, Lord Powell, nor Bernard Ingham served the public interest by remaining in their position as civil servants throughout the Thatcher administration. It is wrong when civil servants merge and morph into political appointments. We know that Ministers like to keep friendly faces around them, but it does not help the independence of the Civil Service. We welcome the initiatives on diversity as well as the strengthening of the Civil Service Code under Gus O'Donnell, but we still want the protections of the public service ethos that the Bill would provide. I welcome the suggestion made by the noble Baroness, Lady Prashar, of having a Joint Committee to carry matters forward.
	I sniff the whiff of reform in the air. As has been said, Mr Cameron has established his task forces and Gordon Brown stirs like an old grizzly from his winter slumber. The Power report reawakens the spirit of Cook-Maclennan and Ming Campbell is willing to lead the Liberal Democrats from the front as thunderers for reform. Such a mood of broad consensus comes but rarely. Will Mr Blair, ensconced in his winter palace, hear it? I do not know. I hope that today's debate and the granting of a Second Reading to the Bill will be a timely wake-up call to him and that we can move forward to a rich and constructive Committee stage.

Lord Lipsey: My Lords, it is traditional for those in this position in the speaking list to start by making the old joke about everything that there is to be said having been said and not everyone having said it. I may get away with not being subject to that charge today, because on the whole my remarks will run contrary to the main spirit of debate. There is one thing on which I am absolutely at one with the House, and that is in congratulating the noble Lord, Lord Lester, on preparing this fine draft legislation and on initiating the debate today. These are issues of the highest importance where the experience of your Lordships' House has a great deal to offer, and we owe him a great debt of gratitude.
	What I am going to say first may sound like damning with faint praise, but it is not really meant to be. There is much in the Bill that will do some good, and there is little in the Bill—with one possible exception that I will come to—that will do much harm, so to that extent I support it. The specific proposal about which I have some doubts concerns the Royal prerogative in matters of peace and war. That proposal has been endorsed by both David Cameron and Gordon Brown, so I am perhaps on risky ground in disputing it, but neither of those two gentlemen has yet been Prime Minister. One or the other—perhaps both—one day may be. Their principal duty if they do attain that office will be to maintain the security of the nation. Would that proposal help in that?
	The secret of preserving peace is that a prospective enemy has no doubt that you are willing and prepared to go to war. I wonder whether there are circumstances in which this provision could cast doubt on that preparedness, although I know that there are provisions for urgent action in the Bill. Perhaps a rogue state threatens us. Perhaps the Government's tough stance towards it causes parliamentary controversy. Perhaps its rather inexperienced diplomats misread the situation. Perhaps they think that John McDonnell and Jeremy Corbyn speak for England and doubt that the Government would win a parliamentary majority for war. Perhaps that doubt, mistaken though it would be, would cause them to embark on a fatal adventure. I accept that that contingency is pretty remote, but the cost if it happened would be pretty high. That proposal, which has become incredibly fashionable, deserves more consideration, including by Britain's military and security advisers, before it is passed into law. I say that in passing.
	I want to devote my remaining remarks to two premises that seem to underlie the case for the Bill, and on which I am not altogether convinced. One is that an important cause of our current political malaise is inadequate parliamentary accountability. The other is that the solution to this lies in new laws and rules. The rules, for instance, in this Bill are based in statutory codes of practice for civil servants and advisers.
	On parliamentary accountability, it is now pretty well the conventional wisdom that it is in decline. I cannot see it. It is a third of a century since I started working in the Houses of Parliament, when I was political adviser to Anthony Crosland. When I look at the changes since that time, parliamentary accountability has not decreased, rather it has hugely increased. I will give noble Lords three examples. The Whips have nothing like the power they had in 1972 when a vote against the Government was a sackable offence. Parliamentary revolt is now permanently endemic—and I welcome that.
	On the examination of the Government's policies, the Select Committee system invented by the noble Lord, Lord St John of Fawsley, has been expanded hugely. The committees are much better services, the members work harder, they have more research behind them, the chairmen are respected and rewarded and they kowtow to government less and less.
	Meanwhile, your Lordships' House, which, shortly before I started work in this place, was virtually moribund, has become—not always to my taste—more assertive. Why is this evident growth in parliamentary accountability so frequently overlooked? I think the answer is that it has gone pari passu with another much less desirable development; namely, the overweening power of the media, a matter again highlighted this week by the witch hunt against the culture secretary. Parliament is holding Ministers to account, but this gets little attention when they are suffering a far worse ordeal by the media. I fear that the effect has been one that we have rightly deplored in this debate—namely, government spends too much time on spin, which deals with the media, rather than on substance, which deals with parliamentary accountability. But I am more concerned that we do something about the media and the spin so that the parliamentary scrutiny, which has developed for the better, shines out as the beacon at the heart of making the Executive accountable.
	My second doubt concerns the place of rules and regulation in enforcing standards in public life. Again this week that has been highlighted by the Mills/Jowell affair. Looking at it, there seems to be something of a pattern. Rules are introduced—this Bill, that code and a scrutiny committee. Yet, despite that, when a real live problem arises, the rules often do not seem to cover the matter. You would think that that would cast some doubt on whether rules are a good way of dealing with this stuff. But it does not. It creates a demand for new rules. The Nolan rules are no longer good enough for public appointments, so we need some more. Ministerial codes do not deal with Minister's spouses. If we have them for Minister's children we will need them for their ex-wives and second cousins twice removed and so on. In each case, this extension is argued for by the press and by eminent bodies like the Graham Committee on Standards in Public Life on the ground that it is essential to public confidence. If rules were the answer to restoring public confidence, the public would never have been more confident in Parliament than they are now. The accumulation of rules over the past couple of decades has been great. It has not done anything for public confidence. The public seem to think that if politics need all these rules, it must be a dirty business, which in my considered view in this country it is not.
	I apply that with a special force to the constant attempt to design new and stricter rules to special advisers, of which group the noble Lords, Lord Lester and Lord McNally, are distinguished former members and I was rather less distinguished. I still feel that we are trying to shove special advisers into boxes which are appropriate for civil servants. I know that the noble Lord, Lord Lester, has tried to avoid that by his references to impartiality not being the necessary quality. When I read the special advisers' code, I wonder whether any special adviser who took it literally would be able to do the job his Minister required of him. We had far fewer such rules when we were special advisers, but I think we had a better idea than some of the boys today of what behaviour was acceptable.
	My concluding and perhaps central point is that, in general, rules do not determine outcomes, although they can help in doing so. Rules are but a part of something wider, and that something is culture. What is going wrong, in so far as anything is going wrong with our system, is down to a laxer culture largely generated by the culture of the media, which no longer seem to relate to the realities but solely to witch hunting. That is what is causing our problems. There is only one kind of regulation that ultimately works; that is, self-regulation. Rules can play only a relatively restricted part in creating that self-regulation. The culture of government is the most important thing and needs the most urgent attention.
	The Bill of the noble Lord, Lord Lester, welcome though most of it is, is not a substitute for appropriate culture changes, nor is it a panacea. I am absolutely sure that the noble Lord, Lord Lester, knowing him as I do, would not claim otherwise.

Lord Mayhew of Twysden: My Lords, one of the advantages of yielding to a request from a colleague to give up one's place in the list of speakers is that you find, particularly if it is the noble Lord, Lord Brittan, that he has said everything that you want to say and you can get away, therefore, with being a lot more brief, which is always welcome in this House. I cannot, however, possibly neglect to say that I have admired enormously, as have all the speakers who have addressed your Lordships' House today, the assiduity in the drafting and the thoroughness and the care that has distinguished the work of the noble Lord, Lord Lester, in bringing forward this Bill. It is long overdue, for reasons I will touch on. It is enormously valuable because it has, as my noble and learned friend Lord Mackay of Clashfern said, opened up for us a means of discussing important issues.
	The Bill resembles, if you like, a multi-barrelled rocket launcher. Each of its missiles is separately targeted, but each is intended to detonate within the area of the overall objective. That overall objective is the extension—I was going to say the preservation—of parliamentary control over the Executive. Within the time available, I want to deal only with its provisions for the prerogative and then with those for the Civil Service and those for the special advisers—that is, Parts 1 and 2. The Bill is surely implementing a reform whose time has come when it seeks to bring on to a statutory basis those residual prerogative powers that, by a process which we all know, over the centuries have become delegated to Ministers and exercisable by them.
	The force of the argument for that reform can be put in this way. The stability of our country depends on our consent for being governed. Of course, governments cannot please all of us all the time—governments cannot even please all of us some of the time—but we put up with that, and are used to it, provided that one condition and one only is satisfied. That is that the Executive of the day is dependent on retaining the confidence of a free Parliament, a Parliament in which our dissent can be fairly, freely—even, on occasion, decisively—heard. That is the key condition for our consent to being governed and it is entirely absent in the far from negligible powers that I am discussing. They are conveniently listed in the Explanatory Notes at paragraph 12. They are far from negligible, as has been mentioned in many speeches today.
	The power that has attracted most attention in this debate has been the power to commit British troops to conflict situations. The importance of that issue has been brought before us many times recently—in particular, by the commitment to participate in the Iraq war. It is not necessary to go into the merits or demerits of the lawfulness of that action on the part of the Executive. I happen to think that, on balance, the Attorney-General's argument was right; although the alternative arguments were entirely respectably advanced. I said that at the time and I hold to that view, but it is not necessary for us to determine that to be able to see that immense interest, to put it mildly, has been taken in the country in the fact that troops can be committed to conflict without prior parliamentary authority.
	I do not forget that, in the case of the Iraq war, the Government accorded to the House of Commons a substantive Motion and secured support for it. I also think that it is probable that, in future, it will be politically impossible for any major deployment of that character to take place without prior authority accorded by Parliament. But that does not decide the issue. It is not enough to say, "Oh well, it will always happen anyway". In the interests of the military, in particular, it is now necessary for there to be a statutory requirement of the character proposed in the Bill. I am of course concerned, as anyone must be, by the point put forward by my noble and learned friend Lord Mackay about the difficulty of bringing the whole case before Parliament on grounds of intelligence, and so forth, but I am rather taken by the point made by my noble friend Lord Brittan—that the dangers of holding back information appear to be greater than those of making it public. However, we must take that point seriously and in Clause 3(3)(b), the Bill provides for an emergency where the Prime Minister certifies that action has had to be taken in advance. That needs to be carefully examined and, I think, goes some of the way towards providing the solution to the problem posed by my noble and learned friend.
	I turn to how the Bill deals with the Civil Service. So much has been said about that in a very approving tone that it is not necessary for me to take much time about it, save to express my warm welcome. It is absurd that the structure, organisation and management of the Civil Service, whose characteristics are so important to the maintenance of a free, democratic government and society and the rule of law, can be changed under the prerogative, with all the limitations on parliamentary scrutiny and judicial supervision that that carries with it today. I wonder why the Government have not brought forward that provision. The noble Lord, Lord McNally, took us through the history.
	I hope that the noble Lord, Lord Bassam, from his impregnable position at the crease, will now tell us whether the Government will give the provision a fair wind and, if not, why not. After all, a statutory footing for the Civil Service has been recommended since Northcote-Trevelyan in 1853, so there has been plenty of time to think about it. The Government say that they have thought about it. Two years or more ago, the Deputy Prime Minister said that a Bill would be enacted. What has happened to it? Why was there nothing about that in the Queen's Speech last May?
	Lastly, as for special advisers, that burgeoning breed needs, with the greatest respect to the noble Lord, Lord Lipsey, whose speech I listened to with my usual admiration, to be brought under statutory control. The worst example of the dangers attending the current system is when the Prime Minister gave power to special advisers to give instructions to civil servants telling them what to do and how to do it. I am very glad to see a specific provision in the Bill making that beyond the pale.
	The Bill is long overdue. I give it the warmest of welcomes and, as another noble Lord just said, I look forward to a very rich Committee.

Lord Armstrong of Ilminster: My Lords, perhaps I may intervene briefly before the winding-up speeches. I am grateful to the noble Lord, Lord Maclennan, for allowing me to do so. I should have been sad not to be here to represent those Members of your Lordships' House who have had long careers in the public service of government. I add my congratulations to those that have already been expressed to the noble Lord, Lord Lester, on his introduction of the Bill and, if I may say so, on the skill with which he has drafted it. That is no greater than I would have expected of him, but it still needs to be recorded and recognised.
	When we come to consider the Bill in Committee, if we are allowed to do so, I hope that we shall look closely at the arrangements proposed for declaration of war or committal of British troops to war and for ratification of treaties. Clearly, in the Iraqi situation, there was a lot of parliamentary debate and, in the event, there was a parliamentary vote. However, there may still be circumstances in which the Government must go to war or declare war without there being a chance to seek parliamentary approval before doing so. The Bill makes provision for that; we shall need to consider whether that provision is adequate. On treaties, it is important that when the Government sign a treaty they commit the nation to the provisions of the treaty. There should be an understanding among the other signatories to the treaty that that commitment is given in good faith and will be honoured. We need to ensure that provision is made for that.
	As regards the Civil Service parts of the Bill, your Lordships will not be surprised to hear that I am entirely happy that civil servants should be required to act with honesty, integrity, impartiality and objectivity and that it should be a ministerial duty to uphold the independence and impartiality of the Civil Service. Indeed, I would go further: Ministers should be required to respect those qualities. I also strongly support what is proposed for special advisers and what has been said on that subject in previous speeches.
	I shall not discuss the other parts of the Bill, because it is my duty to be brief. I shall say only that the need for such a Bill stems from a gradually increasing lack of trust in government. We have seen that lack of trust again this past week. I was relieved when the decision about the Secretary of State for Culture, Media and Sport was taken openly and advisedly by the Prime Minister, not by the Cabinet Secretary. It seems right that the Prime Minister accepts the responsibility. If there were trust in the Government's willingness to observe the principles that underlie this Bill, we would not need legislation. If we try to tie up the Government with increasing regulation, whether by monitoring by Parliament, by parliamentary committees or non-parliamentary bodies, governments will always be tempted to see whether they can find some way around it and do what they want to do that escapes the definitions in the Bill.
	That is why I have not been an enthusiast for a Civil Service Bill, although I recognise that my successors, other than the noble Lord, Lord Turnbull, have been. If a government were, on appointment, to issue a White Paper that committed them not only to the principles but to some of the details of the Bill, and that could be regarded as what was sometimes called a solemn and binding declaration of governmental purpose, and if that purpose were ratified and endorsed by the Opposition of the day and when that Opposition came into government, I for my part should be content to live with that and spare the need for legislation, because it would put responsibility where it belongs and would lay the foundations for an improvement in the trust that Parliament and the public should have in the government of the day.

Lord Maclennan of Rogart: My Lords, I am very happy to have been able to hear from the noble Lord who has just spoken, not least because of my recollection of my first encounter with him in 1974, when he conveyed to me the extraordinarily welcome news that I was to be appointed to the then government in the most junior capacity imaginable. I have followed his utterances with enormous interest ever since.
	In speaking as the noble Lord did of the situation that has given rise to this Bill and the lack of trust, his words brought back to me a conversation that I had with Robin Cook, 48 hours before he died, walking around my garden on the north coast of Scotland. Far from taking pride in the measures of reform which he had been so instrumental in promoting—he not only created a policy programme for the Labour Party before it entered government but, as Leader of the House of Commons, he sought to place at the forefront of the government's programme changes that would make the House of Commons more effective in holding the Executive to account—he was still concerned for the future and feared that the lack of trust in government was growing. I wholly accept what the noble Lord, Lord Lipsey, said in his extremely interesting and thoughtful speech about the press that more needs to be done by cross-party agreement. That has been characteristic of today's debate, which has been of an unusually high order, although this House, when it stands back, is often capable of delivering such sound sense as we have heard on both sides.
	I, too, begin by expressing the enormous debt which those of us who are privileged to contribute to this debate feel we owe my noble friend Lord Lester of Herne Hill for the extraordinary work that he has done in introducing the Bill in such a remarkably finished condition and for his efforts to explain its possible operation, but for the long years of patient incremental work advocating reforms of the constitution that might be acceptable at the time, pushing out the debate ever further forward and giving those who have concerns the ammunition and the routes ahead to develop the process of reform. It has been a remarkable life's work. My party and, I believe, all parties are immensely indebted to my noble friend.
	I shall allude quickly to the one measure in the Bill that has not been touched on; the reference to enabling the ombudsman to take up matters by direct approach in parallel with the provision that allows Members of Parliament to make approaches. It has been discussed in this House before. It is a sensible proposal and, as one who introduced a Private Member's Bill to enable the local government ombudsman to be set up with just such powers, I hope that the Government will not regard it as seriously controversial and that the Minister will indicate that it will be acceptable in principle.
	The debate has focused mostly on what might be regarded as current business, although it is curiously difficult to embrace this business—that is, the Government's intention to introduce a measure to place on a statutory footing the independence and promotion on merit of the Civil Service that have characterised it in the past. I know that my noble friend would have preferred not to have had to introduce that measure. It does seem pre-eminently to be a matter for the Government, and one on which they have been advised by the noble Baroness, Lady Prashar, in her role as the First Civil Service Commissioner, and by Sir Alistair Graham, chairman of the Committee on Standards in Public Life, and his predecessors. It has been supported, I believe, on all sides. It has had the powerful support of the Civil Service unions and many senior figures in the Civil Service. It seems to be almost beyond controversy, and it becomes very hard to understand why there is such a blockage. I am bound to say that those who have pointed the finger at No. 10 seem to be doing nothing less than finding where the culprit truly resides.
	I wholly agree with my distinguished leader, my noble friend Lord McNally, that the Prime Minister apparently regards this as something that will curtail his freedom to act in an almost extra-constitutional fashion to fit his discretionary powers to the needs of the moment in a way that damages the public perception of governance. I was impressed by the passion which the noble Lord, Lord Sheldon, brought to that consideration, speaking as he does from long experience in government and, in his role as chairman of the Public Accounts Committee, of scrutiny of government, with a real understanding of the real issues. At this stage in the debate, I can add only an appeal to the noble Lord, Lord Bassam. If he is not able to do more than play a dead bat today, will he take back to his colleagues the honest sense of this House, which has been expressed by all speakers, that this matter will not brook further delay? Eight years is enough time; let it suffice. The time has come for a decision.
	Encouragement is to be found in recent speeches by Mr David Cameron and Mr Gordon Brown about the need for constitutional reform and, in particular, in what they have had to say about Crown prerogative. The desire to establish that the powers exercised in the name of the Crown by the Executive are in fact drawn from a popular mandate expressed by representative parliamentarians is surely in keeping with the mood of the times. It is not easy to rebuild popular trust in our constitutional processes if it is to be accepted, on a continuing basis, that the great powers of war and peace are exercised by heads of government—and it increasingly appears that that is so—by virtue of an historical trickle-down from the Crown. If we are trying to speak to the public, and to young people, about how our constitution works, and if governance is based in democracy, then we have to address that. It is not simply pettifogging attachment to rules or the belief that rules and regulations are salvation. It is about creating the very ethos that the noble Lord, Lord Lipsey, so strongly advocated. We cannot do that without the full understanding of the press, but the defence—the mere explanation—of the historical basis for the exercise of those powers is not compelling in the world in which we live.
	It would enable the parliamentary part of our governance to act more effectively in scrutiny and oversight if we set these things out in statute. My noble friend Lord Lester has attempted to explain in some detail how he would deal with the obvious difficulties, such as that eloquently pointed out by the noble and learned Lord, Lord Mackay of Clashfern, that governments might not be able to provide Parliament with all the information. There is some merit in the approach that my noble friend has taken in attempting to deal with issues of that sort, though I was greatly attracted by a simple legislative proposal advanced about a year ago by Adam Tomkins, the John Millar Professor of Public Law at the University of Glasgow. Referring to the parliamentary prerogative, he suggested that the simplest solution—which would certainly concentrate people's minds—would be for Parliament to,
	"pass a Prerogative (Abolition) Act. The Act should contain two sections. Section 1 should provide that 'all prerogative powers shall be abolished' and section 2 should provide (with a nice touch of irony) that 'section 1 shall come into force one year after this Act receives the royal assent'. That would give the government one year in which to introduce legislation that, when passed, would confer on the government such powers as Parliament considers it needs in place of its former prerogative powers".
	That would certainly pass the buck from us here. However, I think that the approach of my noble friend Lord Lester is the one that will commend itself. Indeed, it has done so in this debate.
	I shall conclude by addressing an issue that goes beyond the immediate ambit of the Bill, which is how we take these matters forward if we find that we cannot make progress here. I hope that the Bill will make progress into later stages of discussion so that the arguments are better teased out, heard and reported. None the less, we have to accept that these matters require popular involvement, cross-party discussion and the full interplay of Parliament in that process. I commend for the attention of the House the process that was followed in Scotland in considering devolution for the long years when it was not being discussed and during which forward movement was impossible. I refer to the establishment of a constitutional convention to enable discussions to be continued. It would involve parties of all political persuasions and some interests, such as the Church, the trade unions, industry, and other bodies that are particularly interested in this, including the sort of people who were so helpful in the POWER inquiry. It would be a way in which we could systematically seek to advance these powerful and much-needed reforms. I conclude by commending such reforms to this House. I hope that the Bill will progress.

Lord Kingsland: My Lords, I shall join in all the remarks that noble Lords have made about the arrival of the Bill in this House. I, too, congratulate the noble Lord, Lord Lester of Herne Hill, on introducing it. It has served two important purposes. First, the Bill, in itself, manifests the noble Lord's characteristic blend of industry, intellect and—dare I say it—political shrewdness. Secondly, the timing of the Bill is a powerful reminder to the Government that there is unfinished business in relation to Civil Service reform; business which has been long-heralded, but has remained undelivered. One of the responses that I hope the Minister will give is an explanation of why that is so.
	As noble Lords know, the leader of the Conservative Party, the right honourable David Cameron, made a speech on 6 February that dealt with the principles that underlie the Bill of the noble Lord, Lord Lester. Mr Cameron said:
	"I believe the time has come to look at those powers exercised by Ministers under the Royal Prerogative. Giving Parliament a greater role in the exercise of these powers would be an important and tangible way of making government more accountable".
	Those remarks were made on the day that a committee, under the chairmanship of the right honourable Kenneth Clarke, was established to take evidence on these matters. That both helps and hinders me in speaking from the Opposition Dispatch Box. It helps me because I can express broad sympathy for the objectives of the Bill; but, on the other hand, I am unable at this stage to endorse every single clause and subsection.
	The noble Lord, Lord Lester of Herne Hill, was right to concentrate on the control of prerogative powers and not to seek to raise questions about their extent. Quite apart from the merits of that, the better targeted the Bill, the more likely it is to succeed.
	There is a very important gap in the way that we as a nation can control prerogative powers in the context of what the judges are doing. In recent years, it has often been the case that the judiciary has been the most effective means of containing Ministers' powers. Indeed, it has done so to such a degree that it has, from time to time, come under quite sharp criticism from government Ministers.
	However, the role of the judiciary in relation to prerogative powers has been, if anything, in the reverse direction. Although the judiciary has accepted that it has control over the exercise of the Royal prerogative as a matter of principle, on the two fundamental issues with which we have today concerned ourselves—the decision to go to war and the making of treaties—in the 1985 case, Council of Civil Service Unions v The Minister for the Civil Service, the court unequivocally said that it would not seek to examine the exercise of the prerogative in those areas. So if the courts have declared themselves functus officio, Parliament clearly has a particularly heavy responsibility in relation to these powers.
	I suspect that, unless the Minister has undergone a magic transformation from Bailey to Compton, he will tell your Lordships that there is no problem here. The Government have the power to take decisions under the prerogative at the beginning; and Parliament has the right to question that exercise at a later stage. Indeed, Parliament can, if it wishes—and thinks that the exercise of the prerogative has been so abused—seek to censure the Government for it.
	It is easy to dismiss that argument outright; but it is worth reflecting on two matters that have been raised in this debate: one by the noble and learned Lord, Lord Archer of Sandwell; the other by my noble and learned friend Lord Mackay of Clashfern. The noble and learned Lord, Lord Archer of Sandwell, rightly reminded your Lordships that something that initially looks like quite a good idea frequently turns out to be quite a bad one. Making an early judgment is often disadvantageous to the person making it. If you couple that with the reflection of the noble and learned Lord, Lord Mackay of Clashfern—that, in undertaking a scrutiny role on the prerogative, Parliament must be aware of the dangers of being implicated in the Government's decision—what I think the Minister is going to say might not look quite so silly. While Parliament must find ways of exercising control over the prerogative, it must be careful not to be implicated in decisions which it later chooses to repudiate.

Lord Archer of Sandwell: My Lords, I am grateful to the noble Lord for giving way. Does he accept that, in relation to the requirement of parliamentary authority for treaties, by the time the question of ratification arises, it will be known to what the treaty commits us? It is not giving the Government a blank cheque.

Lord Kingsland: My Lords, I am just going to deal with that. It seems that the situation for military decision-making on the one hand, and of treaties on the other, is quite distinct. The noble Lord, Lord Lester of Herne Hill, was wise to include Clause 3(3)(b) in his draft Bill, because there will clearly be circumstances where the Government are receiving information which it would be unwise to put into the public realm at that time, yet which will compel them to take decisions quickly and authoritatively before Parliament can be informed of the basis upon which those decisions are taken. My noble and learned friend Lord Mayhew of Twysden made that point with particular authority; but a number of your Lordships have also made it.
	The position of treaties is quite different. I say with great respect to the noble Lord, Lord Lester of Herne Hill, that, here, I do not think that his Bill goes far enough. The crucial moment for binding the Government internationally is the signing. Once the treaty is signed, there is little a Government can do to change it, unless they repudiate their international responsibilities. It must, therefore, follow that, if Parliament is going to have a role in shaping the outcome of a treaty negotiation, that must—to put it rather crudely—kick in before the signature stage.
	Scrutiny of treaties is different from scrutiny of acts over which the Government have complete control. The Government will be negotiating as one of a number. They will never be able to guarantee the outcome that Parliament wants. That is understood; and Parliament requires much greater flexibility in scrutinising treaties than it would in scrutinising ordinary legislation. Nevertheless—and I say this entirely personally as I in no way wish to bind the Opposition to this proposal—I would like to see, at the initial stages of negotiation, the Government coming to Parliament to lay before the House their negotiating objectives; not in detail, but in broad terms. I would like to see, in the course of negotiations, the Government coming back to a committee from time to time, to let it know how those negotiations are going on. Some of the sessions of that committee will inevitably have to be in camera; but the process will develop a degree of confidence between the Government and Parliament which should, by the time the Government come to sign the treaty, mean that they can do so confident that it will have the House's endorsement.
	I accept that, if one has an over-elaborate and intrusive role for Parliament at these stages, I may run into the difficulties mentioned by my noble and learned friend Lord Mackay of Clashfern. Nevertheless, at the moment, we know absolutely nothing about treaties until it is too late to do anything about them. I think particularly of the extradition treaty between the United States and ourselves; or, more broadly, the European arrest warrant. The House was presented with a fait accompli on matters which were absolutely fundamental to the human rights of individuals. Had we had the opportunity to deal with these matters in the course of the negotiations, I am convinced that there would have been a completely different result.
	The noble and learned Lord, Lord Archer of Sandwell, prompted me to consider this matter. I have now done so. If he disagrees with me, I nevertheless hope that he agrees that I have given it some consideration.
	The issues which have, on balance, dominated the debate today are those of the Civil Service. I endorse the idea of a Civil Service Bill, and therefore endorse what the noble Lord, Lord Lester of Herne Hill, has done, generally, in his Bill. We were all, as we always are, impressed by the speech of the noble Lord, Lord Sheldon. I find it hard to disagree with anything that he said. Perhaps on one matter raised by the noble Lord, Lord Brittan of Spennithorne, I am inclined to support the idea of a fixed upper limit for special advisers, rather than some other solution. Apart from that, I think everything that the noble Lords, Lord Sheldon and Lord Lester of Herne Hill, said about the kind of Civil Service we want in the future—the relationship of permanent civil servants with special advisers and the restraints which should be placed on special advisers—are extremely welcome.
	One matter which was not mentioned this morning was the relationship between the Civil Service and consultants. We all know that there has been an explosion of expenditure on consultants in the past 18 months to two years. There have been various theories advanced as to why this has been so, one being that, to the extent that we seek to contain the growing numbers of civil servants, there will be a strong temptation, when work has to be done, to farm it out.
	However, the scale of the increase of expenditure and the rates that are paid to those consultants is a matter that needs serious consideration and, perhaps, should be included in the Civil Service Bill as well. After all, a consultant does not operate under the same ethical system as a civil servant; yet his views will be considered by Ministers. There ought to be some measure of control in the manner in which this process operates.
	That part of the debate which related to the overall culture of the Civil Service was extremely important. The noble Lord, Lord Armstrong, referred to trust, which, in my submission, blends into culture. In a culture of trust, you do not need all these infernal rules that we now have to apply in relation to almost everything that we do.
	I, like the noble Lord, Lord Maclennan, thought that the noble Lord, Lord Lipsey, made an extremely thoughtful speech. I was not entirely convinced by his conclusions about the uselessness of rules in the light of the change of culture. However, the difficulty in the relationship between rules and culture is very important. As culture changes and rules are regarded as a nuisance, there is a temptation to produce more rules to deal with the growing difference between culture and rules. We will therefore have an endless series of rules and an endless series of tireless efforts to get around them.
	An important component to the solution of that problem has not yet been mentioned. It is one that is entirely, in a sense, in the hands of your Lordships' House. We need to consider in your Lordships' House—it would be true of another place, although it is not for me to suggest it—how to improve the weapons that our parliamentary committees have at their command to get at what is really going on behind the curtain. I would like to see the power to take evidence under oath in order to get at a particularly factual situation which is, as yet, obscure, and the power to subpoena both documents and Ministers. These matters should be considered soon by your Lordships' House.
	I have not quite devised or divined how to achieve that as yet. But, parallel with the progress of the Bill put forward by the noble Lord, Lord Lester of Herne Hill, I would like to see serious thought given in your Lordships' House to how we can make our parliamentary committees really get at what is going on behind the scenes in any particular area which we think needs investigating.
	As so many of your Lordships have said, this has been a debate of remarkable high quality—all the more enjoyable by the many shafts of wit.

Lord Bassam of Brighton: My Lords, I am very pleased to respond to the noble Lord, Lord Lester, in today's Second Reading presentation of his Bill. Like all Members of your Lordships' House, I, too, am a great admirer of the noble Lord, not least because of his persistence, but also because of his ingenuity in bringing forth a whole range of measures, many of which find their way on to the statute book over time.
	There is no doubt that it has been a very illuminating and broad-ranging debate, which has had a rich cast list adding different perspectives and thoughts to it. I am very grateful to the noble Lord, Lord McNally, as ever, for drawing the attention of your Lordships' House to the fact that I am viewed in some quarters as being the Bailey of the Government's Front Bench. It is a flattering description—Bailey was a splendid cricketer. He was an all-rounder, and an Essex man like my good self. One thing that I warn the noble Lord, Lord McNally, is that although I might not be a Bailey, several hundred batsmen have found to their cost that I have got a nifty swing to my bowling.
	The main focus of the debate has been on two main areas—the Royal prerogative and the Civil Service, but, more particularly, the role and position of special advisers. I will come, of course, to those issues. I must give one further congratulation to the noble Lord, Lord Lester, at this early stage: he has certainly brought the Bill before us at a time when these issues are very much at the forefront of debate in our country. It is well timed this particular week when the power to the people report has been so well received and broadly commented on for its contribution to that debate.
	In accordance with the conventions of the House, the Government will not seek to oppose this Bill being given a Second Reading, but we will want to make clear our position on all the major issues. Your Lordships can expect that we will not necessarily be in entire agreement with the conclusions that the Bill draws and the conclusions that the noble Lord, Lord Lester, will draw from that.
	It would be right to turn, first, to one of those areas of the Bill which brought forward very thought-provoking and interesting comments; that is, prerogative powers. I was grateful for the careful way in which the noble Lord, Lord Lester, set out his views on that, which helps us to focus carefully on complex matters. In devolution terms, we recognise that the Bill deals predominantly with reserved matters. However, the Government believe that those provisions dealing with prerogative powers touch on devolved matters and would trigger the Sewel convention. They would require the consent of the Scottish Parliament.
	Against an absolute standard of democracy, the prerogative might seem, as the noble Lord, Lord Lester, described it, something of an anachronism. However, in the Government's view, it continues to serve us well. It allows us to balance flexibility and Parliament's right to scrutiny. The prerogative, as with anything else, can be limited or varied by statute. It is not immune to parliamentary sovereignty. Numerous powers once exercised under the prerogative are now subject to statutory regimes either through particular amending statutes or in Acts of Parliament with more general application.
	Therefore, the question we must ask ourselves is whether recasting elements of the prerogative within a statutory regime improves the quality of our democracy and constitutional arrangements. It is also worth recalling that whether or not Ministers can exercise their prerogative powers without the consent of Parliament, they are in fact accountable to Parliament and the public for their decisions and actions, regardless of whether those decisions are taken under the prerogative or under statutory authority. Powers exercised under the prerogative are not a means of avoiding parliamentary scrutiny and accountability. Furthermore, and notwithstanding the development of judicial review, the courts are reluctant to interfere with the exercise of the prerogative where this relates to high policy. The courts have distinguished between acts involving matters of high policy at the top end of the scale of executive functions under the prerogative and matters of administrative decision where we can expect more judicial scrutiny. The former category would include the power to deploy the Armed Forces. I would argue that such a decision is ultimately a matter for politicians, not the courts. However, putting this within a statutory framework could mean that the courts would interpret decisions taken under the relevant provisions.
	In the Government's view, the prerogative is thus a well established part of our constitutional settlement. As the Commons Public Administration Select Committee acknowledged, it offers much-needed flexibility to govern and gives Ministers executive powers enabling them to react quickly in possibly complex and dangerous circumstances, a point noted in the debate in particular by the noble Lord, Lord Armstrong. The Government therefore continue to believe, as set out in their response to the Public Administration Select Committee's report in July 2004, that it is often possible to make out a case for a transfer of prerogative powers to a statutory framework, but that this is best done on a case-by-case basis. Indeed, I was rather drawn to the acute observation of the noble Lord, Lord Kingsland, that the way in which the prerogative is exercised might, on reflection, not look so silly.
	Many comments made in the debate focused on the exercise of the prerogative and war powers. Noble Lords will be aware that the use of the prerogative by government to deploy the United Kingdom's Armed Forces is currently the subject of an inquiry by the Constitution Committee. The Government have already reiterated their views in a memorandum to the committee and Ministers will shortly be appearing before it in order to discuss the Government's position in more detail. As the Government argued in their memorandum to the committee, they remain of the view that while a government could seek to deploy the Armed Forces on operations under prerogative powers without the support of Parliament, such an eventuality is theoretical rather than real. As the noble and learned Lord, Lord Mayhew of Twysden, described so accurately, a government draw their authority in essence from their ability to continue to command not just a majority, but authority in the House of Commons, so they must maintain the confidence of the House and the electorate if they wish to continue to hold office. They must therefore take account of and be sensitive to the views of Parliament at all times if they are to continue to hold that confidence.
	Moreover, the Government have given repeated assurances that Parliament will be given an opportunity to debate and scrutinise decisions about the deployment of British forces in armed conflicts overseas. In that context, perhaps it is worth quoting the comments of my right honourable friend the Prime Minister to the Liaison Committee in January 2003. It stated:
	"I cannot think of any circumstances in which a Government can go to war without the support of Parliament, so I do not think it is real. I think you can get into a great constitutional argument about this, but the reality is that Governments are in the end accountable to Parliament, and they are accountable for any war that they engage in, as they are for anything else".
	In these circumstances, a formal requirement to consult Parliament, especially one in legislation, is unnecessary, while a requirement to hold a debate in advance of deployment could prejudice the Government's ability to act swiftly to defend national security. It could damage operational effectiveness by providing information about the possible disposition of the Armed Forces to the forces they may find themselves facing, and could lead to difficulties in defining what constituted a deployment requiring the Government to consult Parliament. My noble and learned friend Lord Archer of Sandwell drew this point to the attention of the House and described some tragic circumstances where lack of flexibility might inhibit important deployments.
	Beyond that, as I said in setting out the Government's position in relation to the prerogative in general, putting in place a statutory framework risks involving the judiciary in hearing cases on the legality of deployments. So the Government are firmly of the view that deployments of the Armed Forces are decisions for Ministers. Ministers will then be held to account to Parliament and the public for their decisions and actions.
	The noble Lord, Lord Kingsland, focused much of his interest in this debate on the issue of treaties, which I believe to be an important element. As the noble Lord observed, the making and ratification of treaties is one of the principal uses of prerogative powers in relation to foreign affairs. The Bill contains a number of provisions that would fundamentally affect the exercise of authority in the conclusion of treaties by the United Kingdom and is therefore a matter of some significance. Noble Lords will be aware that we have been consistent in saying that we remain open to considering ways of enhancing the scrutiny of treaties by Parliament. That remains the case today, but some of the key provisions of the Bill go well beyond that.
	The proposal is to require either a resolution to be passed in both Houses or a report to be made by a Select Committee to Parliament before ratification can be effected for every treaty that is subject to such ratification. The number of treaties involved is substantial: more than 300 have passed through the current Ponsonby rule procedure since Explanatory Memoranda were introduced at the suggestion of the noble Lord, Lord Lester, in 1997.
	We have already taken a number of steps to improve the efficient and effective scrutiny of treaties by Parliament. I argue that point because it is rather contrary to what the noble Lord, Lord Lester, asserted. For instance, we have widened the scope of the Ponsonby rule to allow more treaties to fall within its remit and to ensure that Select Committees in another place have the opportunity to consider each treaty laid before Parliament under that procedure. We have also given an undertaking that on all treaties involving major political, military or diplomatic issues, we will normally provide the opportunity for a debate if the Select Committee and the Liaison Committee so request. Both the text of each treaty and its accompanying Explanatory Memoranda, which bring out the treaty's salient facts, are already made directly available to all Members and, more than that, are published openly on the Internet when they are laid. So that information is already in the public domain.

Lord Lester of Herne Hill: My Lords, given all the real improvements which the Minister has referred to, does he accept that the parliamentary scrutiny of treaties beyond European Union legislation should be no less intrusive and well informed than the scrutiny of European Union legislation? Is there any reason in principle why Parliament should not have as good scrutiny powers beyond the European Union for important general treaties, as they do within the European Union?

Lord Bassam of Brighton: My Lords, I agree that scrutiny is very important. The improvements which the noble Lord acknowledges provide a level of scrutiny which is not far out of kilter with what the noble Lord has described.
	In responding to the fourth report of the Public Administration Committee in another place, we said that we would reflect further on the committee's recommendations on treaties, many of which were similar in broad outline to those proposed in the Bill, so there is further scope. Having so reflected, we feel that there may be scope for considering the placing of the Ponsonby rule procedure, currently a constitutional convention, on a statutory footing to increase the clarity and enforceability of the rule that government bring such matters before and to the attention of Parliament. Any change would require wide consultation right across government and there are no guarantees that it would be supported. But we intend to undertake such consultation shortly, which I am sure the noble Lord will welcome, and will inform the House of its outcome in due course.
	The Bill makes reference to overseas territories; it would have implications for the making of prerogative Orders in Council. We believe it could have a negative impact on our relationship with overseas territories. There are differences in the way in which constitutional changes are handled in the territories. All the territories' constitutions are made or amended under statutory powers except those of Gibraltar and the British Indian Ocean territory which are made by Orders in Council under the prerogative. Those made under statutory powers are laid before Parliament but do not need approval. It would be anomalous to require approval for those made under the prerogative.
	I now turn to that aspect of the Bill which has exercised all noble Lords who have participated in the debate—the Civil Service. The Bill deals in large part with the regulation and conduct of the Civil Service. I was grateful for the comments of the noble Baroness, Lady Prashar; her description of the Civil Service as a public asset was one that we should hold dear. Her remarks advising us to avoid making the Civil Service a political football were very wise—we should avoid that at all costs. The Government are very keen to uphold the independence and integrity of the Civil Service, as I am sure were previous governments. My personal view is that we sometimes risk undermining those qualities in the currency of our debate. The Government are committed to maintaining that impartiality for the permanent Civil Service because it is an important part of the fundamental principles that underpin its operation.
	On 27 January this year, the Cabinet Secretary and the First Civil Service Commissioner launched the consultation on a new Civil Service code. A working group, consisting of Civil Service Commissioners and Permanent Secretaries was set up to consider the purpose and effectiveness of the code in autumn 2005. The noble Baroness, Lady Prashar, was the former chair of the working group. We are grateful to her for all her work, particularly on civil service recruitment, where great improvements have been made. The group strongly endorsed the need for a code, but agreed that it needed to be written in a way that would be relevant to all civil servants. The aim has been to produce a code which uses straightforward language and which will be relevant and accessible to all civil servants, whatever their jobs and wherever they work.
	Included in the code is the right for the Civil Service Commissioners to consider directly a complaint or concern from a civil servant about an issue under the code. This was one of the key issues raised in the consultation on the Civil Service Bill. For the first time, we make it clear that that forms part of the contractual relationship between a civil servant and their employer.
	The Ministerial Code and the code of conduct for special advisers place a duty on Ministers and special advisers to uphold the political impartiality of the Civil Service and not to ask civil servants to act in a way which would be inconsistent with the Civil Service code. In addition, we are doing much to strengthen existing arrangements. We publish an annual report to Parliament on special adviser numbers, costs and responsibilities, providing a transparency which did not exist before our administration. Updated codes of conduct for Ministers and special advisers were published in July 2005. We have put in place induction programmes for Ministers and special advisers to clarify roles and boundaries. They will affect the culture to which attention has been rightly been drawn in this debate. The Government have undertaken to consult the main Opposition party leaders on the appointment of the First Civil Service Commissioner and the Commissioner for Public Appointments. The Government did exactly that on the recent appointments of Janet Paraskeva, the first Civil Service Commissioner, and Janet Gaymer, the Commissioner for Public Appointments.
	Noble Lords will be aware that, in November 2004, we published a draft Civil Service Bill for consultation—I have been reminded of that many times today. We were the first government ever to do this. We are grateful to the noble Lord, Lord Lester, and the Public Administration Select Committee for their work on the draft Bill, which we found helpful in developing our proposals for consultation.
	As your Lordships know, the Government are considering the responses received during the consultation exercise. I repeat what I often say on these matters: we will make a Statement in due course. As I am sure noble Lords will appreciate, any legislation has to compete for its place alongside many other priorities. We are looking at the issues raised during the consultation, in particular at things that can be done which do not necessarily require legislation. As I have set out, we have made many changes without recourse to legislation.
	Before moving on to special advisers, I shall speak more generally about Civil Service reform. This is a priority for us because it is most important in improving the delivery of public services. After all, that is what the Civil Service is for. The Cabinet Secretary has set out a vision for a Civil Service which is inspired by four things: pride, pace, passion and professionalism. We are developing a more professional Civil Service. The Professional Skills for Government programme will deliver greater professionalism. We are creating stronger leadership in the Civil Service. In creating the National School for Government, we are supporting these areas through the development and delivery of training and development programmes, tied to the needs of a modern Civil Service. In addition, we are strengthening departmental capabilities through the work of corporate service leaders who are ensuring that departments have strong and well led services.
	My time is running out, but I could not pass up this opportunity to comment on special advisers, since that matter has occupied such a large chunk of discussion today. The noble Lord's Bill makes a number of proposals in relation to special advisers, including placing the code of conduct on a statutory footing and requiring special advisers to uphold the integrity and impartiality of the Civil Service.
	As we know, the role of special advisers is not new. It goes back more than 30 years to the Fulton report and the introduction of special advisers during Harold Wilson's time as Prime Minister. We need to keep the issue in some perspective, particularly numbers. Numbers were referred to on a number of occasions today. The noble Lord, Lord Kingsland, was tempted to put a cap on numbers. That was supported by others in the debate. However, there are only 81 special advisers in post compared to some 3,900 members of the senior Civil Service. I quote Sir Gus O'Donnell on this, when he spoke to the Public Administration Committee. He said:
	"There are a very small number at the minute. I think it is something like 80, relative to the senior Civil Service, they are swamped".
	He added, for good measure that,
	"the system we have works extremely well".
	A number of noble Lords made comments in that regard during the debate. The noble Lord, Lord Sheldon, who is a critic on these issues, said that he recognised the fact, and some years ago he was responsible in part for ensuring that special advisers were well paid for the special expertise that they bring. I welcome that endorsement of special advisers.
	It is worth reminding ourselves that special advisers must observe the highest standards of conduct—and woe betide if they do not, because we know that they get brought before the court of public opinion. I remind your Lordships' House that it was this Government who introduced the Code of Conduct for Special Advisers and Model Contract for Special Advisers, setting out in clear terms the transparency and the nature of the conditions for their employment. That transparency did not exist under previous administrations.
	The other point that I want to dwell on, because it has come up on a number of occasions, is the change made to the code of conduct. The accusation is that it was amended to increase the powers of special advisers and to change their relations with permanent civil servants. The change of the wording was simply this: from "advice" to "assistance". I did not interpret that as meaning, and I do not accept that that means, that special advisers were given additional powers to those of civil servants. It was a change recommended to the Government by the Public Administration Committee, to reflect in reality the way in which special advisers work. For example, one long-recognised task of special advisers is occasionally to brief the media. That cannot simply be defined as advice to Ministers, as under the previous wording. So we should be a little bit sensible here about the words that are used and perhaps not read quite so much into them, because I do not see a conspiracy here to lead special advisers into a role that we simply do not see—having special executive powers and powers to direct.
	It is the case that the Civil Service Order in Council permits the employment of up to three special advisers in No. 10 with executive powers to manage and direct civil servants. Currently only one special adviser has those powers—and I offer the reassurance, as I have on many occasions, that there are no plans to appoint any other special advisers with executive powers.

Lord Sheldon: My Lords, I am grateful to the Minister, but will he take account of the recommendation in the ninth report that special advisers should be separated out as a category of government service, distinct from the Civil Service? At present there is confusion between the work of the special advisers and the work of civil servants and Ministers. That recommendation needs to be seriously considered.

Lord Bassam of Brighton: My Lords, that is a recommendation to which we shall give serious consideration. It is in no one's interest that that confusion exists, because the role of special advisers and the value that they bring to any administration is immense. Their different and respective roles need to be understood.
	There are a number of other issues arising from the noble Lord's Bill which time does not permit me to dwell on. We have answered Questions on the Parliamentary Commissioner for Administration, and I do not intend to go over the matter in detail today. There is also the issue of public appointments and nationality requirements. I am happy to put our thoughts on that in correspondence to the noble Lord to clarify our position. I am overstaying my welcome at the Dispatch Box this afternoon and preventing my noble friend Lord Evans of Temple Guiting from playing his part in the proceedings.
	I set out the reasons why the Government do not lend their support to the Bill. That is not to say that there are not things in it of merit, some of which we have already taken on board outside the realms of legislation. There have been issues that were helpfully raised during today's debate. I add my thanks to the noble Lord, Lord Lester of Herne Hill, for the way in which he introduced his Bill. As the noble Lord, Lord Maclennan, said, it is very much in a finished form and we should be grateful for that, because it is crystal clear in its intent. There have been many telling contributions. I listened particularly to those of the noble Lord, Lord Lipsey. His insistence that we ought to reflect much more on the culture that surrounds government and the issue of trust that goes with that is where this debate begins and ends, and I thought his comments on that point were very well made. As the government spokesman responsible for this area of policy, I will continue to reflect carefully on all the comments made in this interesting and important debate. No doubt these are issues and matters we shall return to in more forensic detail at a later date when the Bill has had some time—how much time, I do not know—for further consideration. For now, though, I shall sit down, having listened, and wanting to listen some more, to the noble Lord, Lord Lester.

Lord Lester of Herne Hill: My Lords, I was once rebuked by a grumpy Member of this House, uncharacteristically, for making a serious point after the dinner hour. He explained that no serious point should ever be made then. I am well aware that this is now the lunch hour, and I will be extremely unpopular if I do not send the House to lunch as speedily as possible. However, I shall first make a few points.
	I thank everyone who has taken part in this debate, including the Minister, with his very full and almost entirely negative reply. I shall not attempt to sum up what has been an extraordinarily rich, deep and wise debate, which has raised issues I want to reflect on further. I also thank those who have congratulated my elected leader, Sir Ming Campbell. In my view, it is marvellous to have such a very young energetic Queen's Counsel as the leader of my party—five years younger than me—so I am delighted by that.
	I need to say something about complacency, especially government complacency. I hope the Minister will not mind my saying this: the only glasnost or perestroika that came out of his long speech was a reference to a possibility of some change with regard to codifying the Ponsonby rule. Otherwise he did not indicate in any way acceptance of any part of the Bill, and gave no indication of whether the Government will introduce a Civil Service Bill.
	Shortly before the previous election, during what we call the "wash-up" period, I was sitting gossiping with two civil servants from a great department—which I shall disguise—about to negotiate with the Minister, when they said, "We can't put any proposal to the Minister unless the special advisers have communicated with the party headquarters and told us that it is acceptable to do so". I said, "I beg your pardon?", and they repeated it. Now, when the noble Lord, Lord Lipsey, my noble friend and leader Lord McNally and I were special advisers, and when the noble Lord, Lord Armstrong, was working in the Home Office and I was working in his department, that would have been totally unthinkable. I would not have dared to go to Roy Jenkins without the Principal Private Secretary being there. I never did—I never intrigued—but if I had gone to Transport House to ask them for the party line before going to the Home Secretary, he would have sent me packing immediately.

Lord Lipsey: My Lords, will the noble Lord not go further? If any proposal in our day had the support of Transport House, it was clearly going to be unacceptable to Ministers.

Lord Lester of Herne Hill: My Lords, that certainly would have been true of the Home Secretary. The noble Lord, Lord Armstrong, refers to White Papers and so on, and the noble Lord, Lord Lipsey, says that what matters is a proper culture, and it is true that rules and principles are no panacea—they simply provide a coherent framework to encourage such a culture. It is better, isn't it, to have Parliament in the saddle in promoting that framework than a self-interested Executive who will always find wriggle room as far as possible because power is delightful and absolute power is absolutely delightful?
	I take another example. The Minister referred to prerogative powers in relation to the colonies and Orders in Council. That is the subject matter of a pending case which I am not in, the Chagos islanders case, where an Order in Council has been made. The basis of the case is that the Queen can do no wrong in the colonies. Taken literally, it means that the Queen, acting under an Order in Council under the prerogative, could decide to boil alive some of Her Majesty's subjects and could do no wrong in the colonies. I say that only because in theory that is the true position under the prerogative unrestrained by Parliament or courts. We will have to see whether the courts, in the case to which I have just referred, accept the Government's argument, which is that there should be no effective judicial review over the matter.
	I have tried in my Bill to be rather practical. I have not sought to regulate excessively. I have not sought, for example, to regulate the treaty-making power from signature of treaty but only upon ratification. I have not sought on the war-making powers to say that one must always go to Parliament initially. I have not sought with the Civil Service to lay down an exhaustive and detailed set of rules. I hope very much that if the Bill is given a Second Reading, we will come back to these matters.
	I believe that the true message that comes through from the guffaw that greeted the Minister when he rose is that we are still in the position of a kind of comedy—"Waiting for Godot" or maybe "Waiting for Gordon Brown". I very much hope that the comedy will soon end and that we will actually get down to the serious business of reform either by a constitutional convention, a committee, a Joint Committee or whatever. I apologise for not doing justice to any of the individual speeches. I would ask the House now if it will give the Bill a Second Reading.
	On Question, Bill read a second time, and committed to a Committee of the Whole House.

Scottish Parliament (Candidates) Bill [HL]

Lord Foulkes of Cumnock: My Lords, I beg to move that this Bill be now read a second time.
	Perhaps I may say as a preamble that I speak as a committed devolutionist unlike some of those on the Conservative Benches but like my noble friend Lord Maclennan of Rogart. I speak as a campaigner for the Scottish Parliament for over 40 years. I was very pleased to see it ultimately established. I campaigned in both referenda in favour of a Scottish Parliament. Of course we had a positive vote even in the first referendum although the Cunningham amendment thwarted the creation of the Scottish Parliament. I speak also as someone who believes that the Scottish Parliament and the Scottish Executive are doing a good job. In the Scottish Parliament there have recently even been some speeches that appear to bring the roof down.
	Nothing about the Bill is intended in any way to put any aspect of devolution in jeopardy. Although I do not like proportional representation and never have done—in this case I may agree with some Members on the Conservative Benches—and the way in which PR invariably results in a coalition government, the Bill is not designed and will not affect the balance of the parties within the Scottish Parliament. It will have no effect on the political balance whatever, however tempting that might be. It is a simple Bill with one simple purpose only—to prevent individuals standing for both the constituency section and the list section in elections to the Scottish Parliament.
	I hope that I am not giving too much away when I try to play what I think is the trump card in all the arguments that I put forward and play that first. I believe that the Bill should get the support of the Minister and of the Government because it is precisely what the Government are currently seeking to enact for Wales—no doubt Welsh Peers who are present will go along with it for that reason—in the Government of Wales Bill which has just completed its passage through the Commons and will soon be before your Lordships' House. I am sure that the Minister will have read the very strong arguments in the debates in the other place in favour of what I propose today. I am sure that he, like all government Ministers, believes in consistency on this issue.
	I have already received criticisms from people who have read about the Bill. It has been suggested by some, including Fergus Ewing, SNP Member of the Scottish Parliament, in a radio discussion in which he and I took part, that it is somehow odd, perhaps even wrong, that the Bill should be initiated in the unelected Chamber of your Lordships' House. Quite apart from the fact that I, like a number of noble Lords present, have been an elected Member for a substantial period of time, that criticism is absurd. This House is an integral part of Parliament and each of us has every right to initiate any legislation. There is no point in pretending that we do not exist. The Scottish Parliament is a devolved parliament but, ultimately, decisions in relation to elections to that Parliament are decided here in Westminster.
	Other critics of the Bill argue that the Arbuthnott commission does not support what I am proposing in the Bill. That is true. However, the Arbuthnott commission report has been subjected to sustained criticism throughout Scotland, particularly from Members of Parliament, on the ground that it is doubly flawed. First, the Arbuthnott report went well beyond its remit and pontificated on issues that it was not asked to address. It did not properly answer the questions that the Secretary of State wanted resolved. Secondly, the evidence that it received does not support its conclusions, or, perhaps more correctly, the conclusions are not supported by the evidence that it received. Purely the opinions of the members of the committee came through those recommendations, not the basis of the evidence that was submitted.
	I have received further critical comment from some who point out that it was a Labour Government, of which I was part, who enacted the current legislation. No doubt someone will say that today. That is also true—forgetting the fact that I supported it out of my usual loyalty—there is no reason why we should not anyway review any part of that legislation and change it if we think that it is manifestly wrong, and that is certainly the case with this particular part of it.
	The voting system for the Scottish Parliament arose from the Scottish constitutional convention and was part of a deal between Labour and the Liberal Democrats. We are seeing again and again in deals between Labour and the Liberal Democrats that the Liberal Democrats always tend to take rather than give. It is a one-way street and they seem to do remarkably well out of it. Although the new voting system for the Scottish Parliament devised by the constitutional convention was clearly disadvantageous to Labour, the Government were totally honourable and stuck by the deal. However, since then we have seen other parties manipulate the system to their advantage.
	I go back to October 1998, when the late Donald Dewar said of the two votes in the new system, "The first ballot gets you a Member of Parliament. The second gets you a government". That is the important difference. He went on to say:
	"In fact, the second ballot is not a second choice. It is the basis of the corrective mechanism to bring the percentage of seats gained in the Parliament into line with the percentage of votes cast for a party".
	So we in Scotland, as the Liberal Democrats constantly say and praise, have the most proportional system of election in the United Kingdom. That is not changed in my Bill. I might like to change it, but the Bill is not intended to do that.
	The problem that the Bill seeks to tackle is the anomaly whereby losers at the constituency level turn up as MSPs on the list. People who have been rejected by the electorate nevertheless get in on the list and then go on to purport to represent the constituents who have rejected them. To give one example that I know only too well of in my old constituency of Carrick, Cumnock and Doon Valley, in 1999 Cathy Jamieson beat Adam Ingram by over 8,800 votes, but Ingram was elected on the SNP list and he set up a local office and purported to represent Cathy's constituents. Even worse, in 2003, Cathy Jamieson had over 7,000 votes more than my redoubtable friend Phil Gallie, and this time she had over 10,500 votes more than Adam Ingram. Yet they both turned up on the Tory and SNP lists respectively, both of them setting up local offices and both purporting to represent the constituents who had rejected them.
	I do not think that some of these statistics have been published before so that people have recognised them; this is a revelation. Out of 129 seats in the Scottish Parliament, 73 are elected to represent constituencies and 56 are elected in the eight regions, with seven MSPs in each region. Out of the 56 list MSPs, 12 did not run for constituency seats, and I have no quarrel with them. But 44 are basically losers of constituency seat elections; that is 78 per cent. That means that more than one-third of all the MSPs are people who the public rejected at a constituency level. Out of those 44, 18 are nationalists; 15 are Tories; five are Trotskyite SSP; three Labour—so we are going to be affected by what I am proposing; two are Liberal Democrats; and one is Scottish Senior Citizens Unity Party. In fact, 15 out of the 18 Tory MSPs are losers; that is 83 per cent. Some 18 out of the 27 nationalist MSPs are losers, which is two-thirds.
	On average, Conservative candidates who lost at constituency level but got into Parliament by the back door gained only 23 per cent of the votes in constituencies, and in one case it was as low as 14 per cent. For SNP candidates, the average is similar at 23 per cent, but their least successful candidate only got 12 per cent of the constituency votes. The biggest constituency level losers who nevertheless got into Parliament are John Swinburne of the Scottish Senior Citizens Unity Party, who got just over 6 per cent in the constituency but got in by the back door; Frances Curran from the Trotskyite SSP—

Lord Forsyth of Drumlean: My Lords, with the phrase "got in by the back door" is the noble Lord arguing that there are two classes of MSPs? I thought that the late Donald Dewar argued that they both had equal status. It is a highly pejorative way of describing people who have been elected under the rules as decided by the noble Lord's party.

Lord Foulkes of Cumnock: My Lords, I am just coming to that. I said that the rules were decided by my party; I conceded that point. That is no reason why we should not look at changing them. I will come on to the fact that, as Donald Dewar said in the quotation, constituency MSPs and list MSPs have a different role. I object to list MSPs purporting to be constituency Members when they have been rejected by the constituency.

Lord Strathclyde: My Lords, I am sorry to interrupt the noble Lord, but this is an important point. He said that the problem is list Members opening up constituency offices. The way I read the Bill, if it were passed that would still be totally possible. I do not understand how the Bill solves the perceived problem that he has stated.

Lord Foulkes of Cumnock: My Lords, I would argue that it would be less likely. Let me explain. I know that the noble Lord used to be a constituent of mine. I have great respect for him. I suspect that he did not vote for me. But he will know that what is happening is that Phil Gallie and Adam Ingram, who are running their offices in the constituency locally, are not just doing that to help the constituents, they are doing it because at the next election they plan to stand at the constituency level and to kick out the sitting MSP. So they are using it as a political platform. My Bill will stop them doing that. I hope I have explained the situation to the noble Lord.
	I was going to mention another loser, Carolyn Leckie, from the Trotskyite SSP. She received about 8 per cent at constituency level and again came back by the back door. So the main purpose of the Bill is to stop the anomaly which turns losers into winners. Another argument in its favour—and I hope that this will help deal with part of a point raised by the noble Lord, Lord Forsyth—is that it makes clear that list and constituency members have different roles. The constituency member has to look after his or her constituents, has to take up constituency issues, to co-operate with the MP, with councils, health boards and so on. But when list MSPs muscle in on this we get absurdity, chaos and confusion.
	At the moment—to give one example, which I know about very well—the Ayrshire and Arran Health Board feels obliged not only to deal with the five constituency MSPs but also because it covers three out of eight electoral regions, it feels obliged to bring along 21 list MSPs. That is manifest nonsense as well as being a bureaucratic nightmare. The list MSP is a party representative who should therefore have a different and wider role, which is no less important, and, indeed, it could be argued, is more important. It may be preferable, for example—and I say this to the noble Lord, Lord Forsyth, in case he still nurtures ambitions for power—for potential Ministers to seek election on party lists. But what should be unacceptable is what Alex Salmond is planning. He is planning to stand for the Gordon constituency, but, knowing his chances of getting elected, as I am sure the noble Lord, Lord Maclennan of Rogart, will agree, are very slim indeed, he is also planning to be on top of the SNP list in the north-east of Scotland, and, incidentally he is still planning to represent Banff and Buchan in the House of Commons—a modern day Poo Bah indeed.
	In conclusion, the present system is a chancers' charter. This Bill forces candidates to decide what role they want to play. It prevents losers from being turned into winners without the approval of the electorate. It gives the power to the people to decide who should be their local MSP as well as which party or parties should form the government. It is common sense. I cannot envisage that any Member of this House would disagree. I commend the Bill to the House.
	Moved, That the Bill be now read a second time.—(Lord Foulkes of Cumnock.)

Lord Roberts of Llandudno: My Lords, as a Welshman I venture into very dangerous territory. In doing so, we know that the Government of Wales Bill will be before us before long. The noble Lord, in proposing his Bill today, said that part of the Government's recommendation is the end of dual candidatures. I am delighted that the opposition of the noble Lord, Lord Foulkes, to proportional representation is at least rejected by the Government.
	There was a debate in Westminster Hall on 15 February. The Scotland Office Minister, David Cairns, said of the Arbuthnott report, Putting Citizens First, that:
	"An element of proportional representation is an essential feature".—[Official Report, Commons, 15/2/06; col. 505WH.]
	So I am delighted that the Government see that the present system is totally unacceptable. In Wales the Richard commission—I am delighted to see the noble Lord present this afternoon—was in favour of proportionality; the additional member, the top-up of a list, or, going further than that, ideally, the single transferable vote. If you use the single transferable vote in a multi-member constituency, every member is elected with the same authority. There are no first-class or second-class members. There are no winners or losers there. When you talk of winners and losers, you are talking only about the first-past-the-post system, not any other system.

Lord Foulkes of Cumnock: My Lords, I am sorry to intervene. Surely, in a single transferable vote system, although three members may be elected equally— I agree that they are of equal status—to represent three seats, there will be candidates who will not get elected. They will be the losers.

Lord Roberts of Llandudno: Yes, my Lords, but not in the same way as we have under the first-past-the-post system. Why is nearly everyone now in favour of PR? Let us take Scotland's general election results in 2001. Labour polled 43.9 per cent of the votes but won 55 of the 72 seats. Surely even the noble Lord, who is supposedly against PR, would say that that is wrong. Something is fundamentally wrong when a party with less than 50 per cent—only 43 per cent—of the vote wins 55 of the 72 seats. There was a similar distortion in Wales, where Labour won 48.6 per cent of the vote, but 34 of the 40 seats. The time is here when PR in one form or another must be accepted by all sides of the House.
	The additional vote system was introduced in Scotland, Wales and the London Assembly to ensure that the people who voted had representation in some proportion to their electoral strength. In both Wales and Scotland, regional list members were returned to make amends for that distortion. I am delighted that the noble Lord admits that Labour also put candidates on the regional list as well as in the constituencies. I know that in north Wales, nearly every Labour constituency candidate was also on the regional list. This is an attack against what happened when this whole electoral system was agreed and an attempt to revisit the devolution settlement.
	Candidates are nominated for the list and for constituencies by all parties. Why were they nominated for both the list and a constituency? Was it not because the parties, in arranging their list members, wanted to ensure that those whom they regarded as best able effectively to represent the people of Scotland or Wales at least had a decent chance of winning a place in the Parliament or Assembly? After all, it was the parties who chose them. I want an open list where the electors choose them; but, at present, it is a closed list and the party decides.
	Neither the Richard commission in Wales nor the Arbuthnott commission in Scotland had any difficulty with dual candidatures; nor has the Electoral Commission. For the sake of the Parliament, for the sake of the Assembly but, most of all, for the sake of good representation and effective government in Scotland and Wales, it is essential that we have the strongest possible representation. The unease in Wales arose because of the result, which may even have reached the ears of people in Scotland, in Clwyd, West. Alun Pugh, the Labour candidate, won the seat under first past the post, but the three main opposition candidates were on the regional list. What is at all wrong with that? If the party gets sufficient support at a regional level, what is wrong with those candidates becoming regional list members?
	I understand that the noble Lord sees it as reprehensible when he accuses regional list members of setting up constituency offices. A member who wants to meet his or her people needs to be established somewhere in that region. Regional list members cannot be in outer space or on another planet, so they have to be in their region or they cannot represent effectively. Whether or not they were a defeated constituency candidate, they would still set up an office in the region if they were elected from a regional list. They could also stand at the next election in the constituency in which they have an office. Preventing them now cannot stop them being a candidate in a constituency, unless you are going to say, "Sorry, only the constituency member is allowed to have a campaigning office in such and such a place". Perhaps that is what you want to do.
	So what about all other organisations that campaign, such as Help the Aged and other humanitarian organisations? Are you going to say to them, "You're not to have an office"? That would be a total restriction on the rights of people to work together for the benefit of the whole community. Are we now to legislate to say, "No offices. Only the political office"? I would say that this Bill, for that reason alone, needs to be defeated. This Parliament must be representative of all organisations and open and inclusive. This Bill excludes. It is negative, and it will alienate and limit. So I suggest that the noble Lord withdraws the Bill at this stage in the proceedings.

The Earl of Mar and Kellie: My Lords, I too am grateful to the noble Lord, Lord Foulkes of Cumnock, for laying before the House this admirably brief Bill and, in so doing, allowing us to debate some of the possible remedies to the apparent difficulties of the additional member system as legislated for in the Scottish Parliament.
	Before I start, I must say that the noble Lord obliquely reminded us that part of the roof of the Scottish Parliament collapsed yesterday. I entirely blame the United Kingdom Government. It was their decision to choose the site and the architect, and to commission a building whose plans had not been completed and that therefore could not be measured by any quantity surveyor. I sometimes wonder whether there was an intention to get the Parliament off to a bad start. A better approach would have been to arrange temporary accommodation, as was done on the Mound, and to leave a calmer process of procurement to the Scottish Parliament in the fullness of time.
	That invective discharged—much to the relief of my psychiatric advisers—my first response to the Bill is that it was the British who imposed the AMS system in West Germany in 1945. There must be evidence from there as to how the system settles down. I am also mindful of the fact that Konrad Adenauer was the Chancellor for 20 years as a regional member. I believe that the additional member system was chosen for Germany to prevent the domination of the German Parliament by any one party. It can be said that Scotland also benefits from the avoidance of such domination, although it must be galling for whichever party is the natural party of government.
	This Bill attempts to remedy the difficulties between constituency and regional members by preventing candidates appearing in both ballots. I can just about see the logic of this suggested change; the winner of the constituency vote would not see his defeated opponents having any public role. The regional member elected for his constituency area would have campaigned throughout the region, and more strategically so. So far so good. But then there is a problem of how the voters engage with the regional campaigns and, subsequently, with the regional members. So far, they have lacked visibility and personal identification in some cases. In contrast, where a regional member has fought in a constituency campaign, they will at least have some profile with the voters in that constituency, if not across the whole region.
	I recall in 1999 being a constituency candidate in Ochil, and a regional candidate for Mid Scotland and Fife. I suppose that I was also a candidate for the Clackmannanshire Council; maybe in my case there was a need for my family to catch up with democratic procedures. People told me after the election that they had given me their second vote. Of course that was not true, for I was No. 5 in the list. They had in reality voted Liberal Democrat in their second or regional vote. It is also worth noting that the constituency is another where, of the four candidates, three ended up in the Scottish Parliament and, obliquely, one returned to this House with a life peerage, so there were clearly no losers there.
	I am not in denial about the conflicts that sometimes evolve between constituency and regional members. It is worth noting that, in this United Kingdom Parliament, it is well recognised that Members of Parliament in the Commons do constituency casework, and that your Lordships restrict yourselves to a more strategic or interest-based approach to parliamentary work. I hope that a convention can evolve around those principles in the Scottish Parliament.
	My choice for reform of the additional member system in Scotland is not in the Bill. I am in favour of retaining the mixed member system—terminology recommended by the Arbuthnott commission—and the adoption of open lists. Open lists come in more than one form. Because I want to see regional candidates developing some profile with the voters, and to get a real regional campaign going among the candidates on each party list, the system that I promote is one where the party would select the candidates and decide the number of candidates, but where there would be no numbering system imposed by the party. That would be decided by the voters. I would allow there to be an alternative opportunity to vote for the party, but this would not influence the decision on who was elected. That would wholly be determined by the voters. The voters would have decided who was the runner-up, and hence the successor in the event of a regional member departing for any reason. At present, the succession is seen largely as a mystery. Clearly I am asking the parties to give up some control of their lists, but they would retain full control of who was on them.
	I have not talked up the single transferable vote today; I expect that my noble friend will do so. The mixed member system can be improved and, in any case, I prefer evolution. In Scotland we must always wrestle with Lord Cooper's 1952 judgment that sovereignty in Scotland lies with the people. My system of open lists without any predetermined order is near to the fulfilment of that little-understood constitutional principle.
	The noble Lord, Lord Foulkes of Cumnock, is entirely right to bring this subject to the United Kingdom Parliament, as the Scotland Act is currently a reserved matter and the issues behind the Bill are real. His ban on dual candidacy would give the regional contest a different and separate flavour from that of the constituency contest. On the other hand, a strong constituency candidate may well end up with weaker candidates against him or her, thus denying the voters a real choice. The strongest candidates from the other parties are more likely to go elsewhere, to their party's regional contest. I look forward to a further debate about the Arbuthnott commission's report, and to constitutional evolution in Scotland.

Lord Forsyth of Drumlean: My Lords, I shall long remember this debate, if for no other reason than hearing the noble Lord, Lord Foulkes, describe the Scotland Act as a "chancers' charter"—I opposed the Scotland Act but not even I would use such extreme language—and the noble Earl, Lord Mar and Kellie, trying to blame the United Kingdom Government for the roof falling in on a building that cost £440 million when his noble friend Lord Steel of Aikwood was the presiding officer who looked after the project. I found that quite extraordinary.

Lord Foulkes of Cumnock: My Lords, I was describing the aspect of the Scotland Act that I am seeking to change as a chancers' charter, not the whole Act.

The Earl of Mar and Kellie: My Lords, my point was that the Scottish Parliament project was commissioned by the United Kingdom Government before the Scottish Parliament sat.

Lord Davies of Oldham: My Lords, the noble Lord will recognise that he is entitled to only four minutes, but a slight extension might be in order here.

Lord Forsyth of Drumlean: My Lords, I am most grateful to the Minister for assisting me in my defence of the United Kingdom Government. The noble Lord, Lord Foulkes, now seeks to choose the bits of the devolution Act that he likes. From my perspective, the whole impetus behind the devolution project was to enshrine a permanent Labour majority in Scotland. It was about concentrating Labour's power and then coming down to England to vote on English issues that were devolved in Scotland. It was a piece of gerrymandering.
	But this Bill takes the biscuit for gerrymandering. It is about forcing other parties, which will not win as many constituency seats but which would win seats on the list system, to field their weakest candidates to the electorate. I agree with the noble Earl that a better system, if we are going to amend the system, would be one that gives voters an opportunity to have a say on the quality of candidates. This measure, however, is straight out of Stalin's guide on how to run a politburo. Not content with Labour being the party that dominates Scotland in local government and in the Scottish Parliament, the noble Lord resents the fact that people might come to a constituency and put forward a different point of view. Therefore, they have to be stopped. Note that he is concerned about people setting up offices. He is not concerned about the cost of those offices. This very month, the cumulative cost of the Scottish Parliament will reach £1 billion.
	The electorate and taxpayers are entitled to have the best quality of candidate. They are entitled to see the sort of candidates that are going to the Scottish Parliament. Allowing people to stand as a constituency candidate while being on the list means that good people will go forward. With this measure, good people will not go forward. They will want to be on the list because they might lose their chance. Voters will be cut out of the process and given no opportunity to express a view. The noble Lord, Lord Foulkes, loves that, because the party apparatchiks will decide who is on the list. I shudder to think of the kind of process that that involves, but it will not be the kind of process that democratic scrutiny should provide.
	This is an extraordinary Bill and I am looking forward to the Minister's reply because I suspect that he will not support it. I am looking forward to seeing how he explains how this would be wrong for Scotland although it is right for Wales. I accept that Wales is completely different from Scotland. Apart from anything else, the difference between an Assembly and a Parliament appears to be £400 million—one gets an Assembly for £40 million but a Scottish Parliament for £440 million, and I very much doubt that the rafters will be coming down in the Assembly.

Lord Maclennan of Rogart: My Lords, I was inevitably reminded of the atmosphere that used to be engendered in the Scottish Grand Committee, rather than that of your Lordships' House, by the naked partisanship of the approach that the noble Lord, Lord Foulkes, took when he rose to his feet. It was interesting to hear what he prayed in aid of his Bill. We are delighted that he has brought it forward, because it gives us a chance to ventilate some issues that are current in Scotland. The noble Lord demonstrated his naked partisanship by praying in aid such a principle as consistency only when it favoured his own case. There was never any attempt to make the settlements in Wales and Scotland the same. Even today, it might be argued that there is stronger opinion in Wales in favour of aligning the Welsh settlement with the Scottish settlement than the other way round. I also found his treatment of Sir John Arbuthnott and his report a little ungenerous, to say the least, considering the work that was done, the extensive evidence that was taken and the thought that obviously went into that report. That did not quite show the noble Lord's normal fair-mindedness in these matters.
	The noble Lord's Bill seeks to prohibit candidates for elections to the Scottish Parliament from standing for election both in the constituency list and in the regional list. What seems to lie behind it, as does the opinion which he seeks to meet, is the sense that the dual system gives an unfair advantage to parties which have been unsuccessful in winning the constituency seat. They may set up headquarters to campaign for the interests of their party fortified by the fact that they have representation through the regional list. There may be some grounds for grievance about that. My noble friend Lord Mar and Kellie suggested other ways of dealing with it. However, I cannot see how that concern is even to be mitigated by the passage of this Bill. The dual member system is not itself challenged by the Bill, only the way it operates. Parties other than those that are the winners are still going to raise their flags in the constituencies that they have not succeeded in capturing.
	Indeed, the whole cast of mind about winners and losers, suggesting that somehow the only winners are constituency winners, seems clearly tied to the past and the notion that the only legitimate kind of electoral system is first past the post. That does not lie at all well with the espousal of proportional representation. If the noble Lord is in favour of the Scottish devolution settlement and is not in favour of PR, then I do not know what his support for the principle of devolution is. It is PR that has made the settlement so widely acceptable in Scotland, and the fact that it does not provide a permanently entrenched single party system. So far from having been the means whereby the Labour Party enshrined the permanent majority for itself, as was suggested in the speech of the noble Lord, Lord Forsyth of Drumlean, the afflatus of PR has kept the Conservative Party above the horizon in Scotland. Without PR, it would have disappeared completely from the political landscape.
	Although I respect the strength of its arguments, I think that the Arbuthnott commission missed an opportunity in not proposing to introduce the single transferable vote, which would have resulted in a complete equalisation of parliamentary candidates and representation across the board—there would not have been different types of members in the Scottish Parliament. However, that was not the commission's approach. I agree also with my noble friend Lord Mar and Kellie that it is possible to ameliorate the dual member system in the way that he suggests. Indeed, it is in line with the Arbuthnott commission's report, which advocates the open list system.
	I also beg to suggest that the motivation behind this Bill is more partisan than democratic. The choice should be for the electorates. It is not a totally unfamiliar situation historically to have people losing in one constituency and being elected in another at the same time. I recall that, in the Liberal landslide of 1906, Arthur Balfour was defeated in the constituency that he had represented for quite a long time. However, because of the dual candidacy possibilities, he was elected in the same election for the City of London. He continued to make sure that his voice and that of the Conservative leadership was heard thereafter. I do not think that there was much objection then on the grounds that a loser was being elevated to being a winner. These things have to be considered in the round; they have to be balanced. I am bound to say that the present system works well.
	The Government's proposals for Wales, which are not directly affected by this Bill, will no doubt come before this House shortly and some of the same arguments will undoubtedly surface. Far from agreeing with the noble Lord, Lord Foulkes, that we should accept that Bill and try to align Scotland to the Welsh situation, I prefer the view that the government of the day got it right, or nearly right, in Scotland and that the Welsh Assembly legislation should be viewed in that perspective.

Lord Strathclyde: My Lords, it is Friday afternoon, so we must be dealing with a Scottish Bill. I must say to the Government that it would be better if we timetabled some of these debates at peak viewing times; we would get far greater interest. These are good debates, which I am enjoying—so far. The noble Lord, Lord Foulkes, has introduced his Bill. He began by saying that he had been a great advocate of Scottish devolution and a great supporter of almost everything apart from the electoral system—the "chancers' charter", as my noble friend Lord Forsyth reminded us he called it.
	The noble Lord said that the electoral system was manifestly wrong. But never in all his words could I discover, convincingly, why it is so manifestly wrong, apart from two problems: first, the problem of many invitations being sent out to the MSPs—directly elected and on the list system—which does not seem an insurmountable problem; and, secondly, the problem of a constituency office. Yet, as I said in my intervention, this Bill would not stop that. For example, if the noble Lord was elected directly to his former constituency and I was on the regional list, there would be nothing to prevent me from setting up a constituency office in Cumnock, Auchinleck or even in Mauchline, which is much nearer home. The Bill does not seem to deal with those fundamental problems.
	The Secretary of State for Scotland in another place said recently that he does not support any changes to the electoral arrangements for the Scottish Parliament before the next poll in May 2007, so I will be very interested to hear what the Minister says about the Bill. Whether or not that is the case, perhaps I may ask the Minister if we will have an opportunity in this House to debate the recommendations of the Arbuthnott commission so that we can deal properly with the criticisms made by the noble Lord, Lord Foulkes.
	In a few weeks, we will deal with the Government of Wales Bill, certain clauses of which will introduce the same measure in Wales as the Bill before us today would in Scotland. I am fascinated to know why the Government believe that a change is justified in Wales but not in Scotland. The Minister may argue that the practical experience of the electoral system in Wales differs from that in Scotland, but I am not so sure. The arguments made by the noble Lord, Lord Foulkes, and his colleagues in the Scottish Labour Party seem to be identical to those made by their Welsh colleagues.
	As I understand it, there are two principal motives for banning dual candidacy, or individuals standing both in a constituency and on their party's regional list. The first reason is that it is undemocratic for a candidate to lose in a constituency but then go on to be elected via the regional list. The second is that it is an abuse for regional members to set up constituency offices and cherry-pick local issues with a view to raising the electoral profile for the next election. Neither of these is persuasive.
	I would have more sympathy for the first point—that losers should not become winners—if the electoral system were entirely first past the post, which is not what the Scottish people decided on in the referendum. I do not propose to rehearse the arguments here for or against proportional representation. We all have our views on it. Personally I am rather opposed, as I know is the noble Lord, but the fact remains that the form of PR used to elect the Scottish Parliament was part of the devolution package agreed by the Scottish people. It strikes me that if we are to have a form of PR, politicians should accept that the resulting political culture will be different from that which we are used to from first past the post. I think that I am correct in saying that most forms of PR involve having more than one person representing a particular geographic area: STV involves multi-member constituencies; party lists cover large geographic areas; and the additional member system involves a mix of constituency and regional members. Therefore, as the Arbuthnott commission concluded:
	"Candidates coming in second or third place who are elected through the regional list are only 'losers' in the context of a first past the post, 'winner takes all' electoral system. This logic does not sit well within a proportional system and introducing it devalues and undermines the concept of proportionality".
	Unless we are going to revert to a first-past-the-post electoral system, the argument that losers should not become winners does not hold water.
	Nor therefore does the second principal objection to dual candidacy hold water—that regional MSPs have been abusing the system by setting up constituency offices. In the first place, I suggest to the noble Lord that, even if we accept this motive for a ban, the Bill will not achieve its desired effect. The very nature of devolution results in constituencies having more than one representative and consequently competition between representatives—between MSPs and between the MP and MSPs. That happens in any case, as the noble Lord well knows. It is a departure from the tradition in this country of having one parliamentarian representing a specific area, but that is what devolution is all about.
	As ever in these matters, this is a state of affairs that was identified in advance during the passage of the Scotland Bill by my much-missed friend and colleague, Lord Mackay of Ardbrecknish. He correctly prophesied this on 8 July 1998:
	"The problem with the additional member system is that it will be a case of 'Oh well, why don't you go and see Jimmy Smith who is a member of your own party? Why not go and talk to him? He will deal with you'. There will be some shuffling about. Or it may be said, 'Oh, that's not my expertise. The other regional member, that is his expertise. Why don't you go to see him?'".—[Official Report, 8/7/98; col. 1281.]
	What is interesting about the next exchange with the noble Lord, Lord Sewel, who was the Minister responsible for taking the Bill through the House, is that it is even more illuminating and does not fit entirely with what it appears Donald Dewar was saying in another place. The noble Lord, Lord Sewel, defended the additional member system by saying:
	"I do not believe that there will be a case of passing the buck. What will happen is that the individual constituent will have a choice of people to whom he can go. Again, that is to the good. The individual constituent will decide whether he wishes to write to, or see, the member of the Scottish Parliament who is returned for the constituency in which he lives, or whether he writes to, and sees, one of the regional representatives. The point is that regional representatives are also constituency representatives as well as those members who are returned in the first-past-the-post system. Both have constituencies. Nobody will somehow be returned to the Scottish Parliament on some sort of national list or something like that. It is the difference between individual first-past-the-post constituencies and regional constituencies".—[Official Report, 8/7/98; col. 1293.]
	That is the advice that was given to us at the time by the Minister in this House for the Scottish Office. Therefore, the problems identified by the noble Lord, Lord Foulkes, are no more than the inevitable consequences of this type of electoral system. If there is a problem with competition between regional and constituency MSPs, logically one should be arguing for a return to the first-past-the-post electoral system, which is perhaps really the noble Lord's intention.

Lord Forsyth of Drumlean: My Lords, I apologise for interrupting my noble friend, but did he notice that the noble Lord, Lord Foulkes, described the list members as party representatives, not as Members who are elected to serve the people who voted for them? If they are party representatives, surely the taxpayer should not be providing any money for offices or anything at all.

Lord Strathclyde: My Lords, as usual, my noble friend has made an extremely good point, which no doubt the noble Lord, Lord Foulkes, will wish to take up when he replies. It also flies against what the Minister told us in 1998—that there would be no fundamental difference between list MSPs and those directly elected.
	The Arbuthnott commission was set up by the Secretary of State to review Scotland's electoral boundaries and voting systems after he had been lobbied on those issues, including dual candidacy, by his colleagues in another place. It reported:
	"The Commission believes that preventing dual candidacy would be undemocratic and agrees that it would place 'an unnecessary restriction on the democratic rights of . . . candidates, parties and . . . electors'".
	If noble Lords are tempted towards a ban on dual candidacy, despite the Arbuthnott recommendations, they should also look at the warnings that have been made by the Electoral Commission and the Electoral Reform Society. First, it is likely that a ban would undermine the quality of constituency contests and favour the incumbent MSP—most of whom are, of course, Labour, which is why the noble Lord, Lord Maclennan of Rogart, said that the Bill's underlying motive is entirely partisan.
	The Electoral Reform Society found no evidence of a desire from the public to change the system, and to ban dual candidacy would be to go very much against the international norm for this electoral system. I understand that, with the exception of a couple of provinces of Canada, which are only contemplating the system, every other country using AMS permits dual candidacy; there is even an example of it being a required feature of the system.
	The Electoral Commission concludes that, in the light of international norms,
	"we would caution that there should be compelling reasons for introducing a change to an electoral process that is as yet untested".
	When the Government launched their proposals for Scottish devolution, they said that they wanted a new system of politics for Scotland. I think that they have probably achieved that, and it now seems rather churlish for the devolution enthusiasts on the Labour Benches to try to change it after the event. So I hope that the noble Lord will not pursue his Bill this afternoon—if he begs leave to withdraw it, I will not oppose him.

Lord Evans of Temple Guiting: My Lords, I commend the alacrity and enthusiasm of my noble friend Lord Foulkes of Cumnock in his determination to debate matters arising from the Arbuthnott commission report. This is the second time I have paid him that compliment in a very short period.
	This is the fifth parliamentary occasion so far since the report was published on 19 January that a debate has taken place on some aspect of it. The noble Lord, Lord Strathclyde, asks when we will have a full debate on the report. He is a senior member of the usual channels—I am not, so I pass the question back to him.
	The Government do not block a private Peer's measure on Second Reading but we must make our position clear on such occasions. As the Secretary of State for Scotland has noted on more than one occasion, the Government have no plans to reopen the Scotland Act. That would apply either for the purposes of my noble friend's Bill or for any other immediate purpose. We do not think it right, therefore, that this Bill, focusing as it does on a single matter linked to the Arbuthnott report, should be taken forward.
	As we have heard, the Bill aims to prevent candidates in elections to the Scottish Parliament standing as constituency members and as additional members on the regional list system. This would reverse the position in the Scotland Act. It is undeniable that the dual candidacy provisions have determined to some extent the views of political parties in Scotland about how to field candidates. I can therefore understand, up to a point, why the noble Lord, Lord Foulkes, wished to focus on this issue.
	However, perhaps I may set the Government's position in a wider context. The Arbuthnott Commission on Boundary Differences and Voting Systems reported on 19 January. Its report reflects some 18 months of deliberations, including submissions of evidence from a range of bodies, meetings held across Scotland and a structured programme of discussion and exchange with political parties, electoral administrators and local authorities, as well as Members of this House.
	Where do the Government stand on the findings and proposals in the Arbuthnott report? First, as the Secretary of State for Scotland said on the day of publication, we believe that the report contains a number of interesting recommendations, which will be considered carefully and responded to in due course. The Secretary of State added that the report provided an opportunity for full consideration and debate on the proposals. Parliament alone is certainly seizing that opportunity. I am sure that we will have another opportunity shortly with the help of the noble Lord, Lord Strathclyde.
	The Secretary of State went on to say that should the Government decide to take forward any legislative changes arising from Arbuthnott, these could not be made before the Holyrood elections in 2007. That is the Government's position on the timing of, and context for, taking action related to the commission's report.
	The report contained 24 recommendations, some of which are for government to consider, but others come within the ambit of the Scottish Executive or Scottish Parliament and the Electoral Commission. As the Government have reached no view on the recommendations in the Arbuthnott report, I am unable to provide today a critique of the merits or otherwise of the specific measures which relate to changes to the electoral system. The Arbuthnott commission set out the reasons for reaching its view and I need not repeat them here. Your Lordships have already heard comments both supporting and dismissing the report's arguments on this point. Much of the debate today has borne out the basic point that I made at the start of my remarks that there must be few recommendations in Arbuthnott that would command universal support.
	This is not necessarily a judgment on the soundness or otherwise of their substance. It simply reflects the fact that, when it comes to constituency boundaries and electoral systems, parliamentarians in this House and the other place, as well as the wider voting community, tend to have a broad range of views. For this important reason—I am delighted that I am amusing my noble friend Lord Rooker—governments have traditionally sought to build on any consensus that may emerge when constructing electoral systems. At the same time, government cannot shy away from taking difficult policy decisions where consensus may not exist.
	In the course of his speech, the noble Lord, Lord Foulkes, claimed that the Arbuthnott commission had misinterpreted its remit. He did not go on to define exactly what he meant. However, I am aware that some commentators have argued that the commission gave an excessive emphasis to "respecting the principles of the devolution settlement", which formed part of its remit. It has been argued that the commission construed this as a barrier to considering voting systems beyond those with elements of proportional representation.
	The Government do not accept that the report is flawed because of that. We accept that the essential nature of the devolution settlement means that proportional elements are part of the picture. However, there are ways of delivering an element of proportionality in the voting system other than the recommendations that the commission made. Nevertheless, I recognise that there is probably room for debate and discussion on this matter as we consider the report's findings and analysis.
	I now reach that part of my short speech to which all noble Lords are looking forward: the Government of Wales Bill. The noble Lord, Lord Foulkes, described this as his trump card. I was immensely flattered that the noble Lord, Lord Forsyth, said he was looking forward to what I said on this matter. It was a matter that the noble Lords, Lord Strathclyde and Lord Roberts, and practically all noble Lords who have contributed to the debate have mentioned.
	The question is whether the provision will require candidates for the Welsh Assembly to stand in either constituency seats or for regional lists. Everybody is claiming that this ought to be the basis of the electoral system in Scotland. The Government do not accept the automatic assumption that electoral systems for the different devolved administrations need to be wholly identical. To the extent that such systems are part of the devolution settlement, there is already what the constitutional experts would call "asymmetry" between the various settlements. It is perfectly reasonable to argue, therefore, that there may well be variations in the electoral systems tailored to suit the particular requirements of the different devolved administrations. Indeed, we see a pertinent example in the introduction of a new voting system for local government in Scotland, which would not necessarily attract support for replication in the rest of the country. Devolution means that differences emerge that stand on their own merits.
	This has been a useful, relaxed, amusing and interesting exchange of views on matters connected with elections to the Scottish Parliament. I have no doubt that there will continue to be further consideration and debate on Arbuthnott, and this can only be a good thing. However, on the specific issue of banning dual candidacy at elections for the Scottish Parliament, there is no prospect of government support for reopening the Scotland Act for this or any other purpose at present. I would therefore have to express strong reservations about the benefits of the Bill of the noble Lord, Lord Foulkes, proceeding further in this House.

Lord Foulkes of Cumnock: My Lords, I shall be brief in reply because I know that the noble Lord, Lord Laird, has a very important Bill in relation to Northern Ireland, which needs proper consideration. I also thank my noble friend Lord Evans for his usual unfailing courtesy, to me personally, in discussions in the run-up to the debate on this Bill, and the way in which he dealt with it.
	It appears, although I have put some really powerful arguments, that I have not yet convinced noble Lords of the arguments in favour of the Bill. However, I am reassured by the number of quiet assurances that I have had over the past few weeks from noble friends who, for understandable reasons, are unable to be present today. That gives me real assurance to be encouraged to proceed further with this Bill, although I know that that will disappoint the Opposition—and, even more perhaps, the Government. I say that because from time to time I am accused of being not just a loyalist but maybe an arch-loyalist. I cannot remember the last time I voted against the Government, in either House, when I was a Member in the Commons or since I have been here, but this is an area on which I have really grave concerns about what is happening.
	The Arbuthnott commission was set up to deal with non-common boundaries in Scotland and the four different electoral systems that we will have when local government is set up—a different system at each level in Scotland. I have said right from the start that it will cause confusion and chaos and I think that the Secretary of State is wrong in saying that there should be no changes in this regard. I feel strongly about the matter, and I have said so to the Secretary of State, to the Under-Secretary of State and to my noble friend Lord Evans, and I am sure that it is even getting through to some officials in the Scotland Office and elsewhere that this is an area in which I think we are getting ourselves into difficulty.
	I confess to being partisan. In fact, I think that I am almost as partisan as the noble Lord, Lord Forsyth—in a different way and on a different side of course, in relation to this matter. When he was making his criticism of me, I found it somewhat strange that he forgot that, as Secretary of State for Scotland, he ruled Scotland without any mandate from the Scottish people for so long.
	What also came through from both the Liberal Democrat and the Tory Benches was a worry that, if this is implemented, they will not have enough candidates of sufficient calibre to put up for both the constituency and the list seats. As far as the Labour Party is concerned—unofficially, of course; I do not speak for the Government—we will have enough candidates of top calibre to put up in every constituency and for every list.
	Penultimately, I, like the noble Lords, Lord Roberts and Lord Forsyth, and others, look forward very much to discussing this issue when we discuss the Government of Wales Bill. Some of us will be consistent, even if Her Majesty's Government find themselves unable to do so. Maybe it will be the first occasion where I am not able to vote with the Government in this place. A number of other points have been made during this debate, but there is a very important Bill on Northern Ireland to come, so I will not deal with them here. I will press on with the Bill, however, and ask your Lordships to give it a Second Reading so that I and other noble Lords can deal with all those points at a later stage.
	On Question, Bill read a second time, and committed to a Committee of the Whole House.

Police (Northern Ireland) Bill [HL]

Lord Laird: My Lords, I beg to move that this Bill be now read a second time. The Government of Ireland Act 1920, which established Northern Ireland, prohibited discriminatory legislation. The Stormont Parliament never provided for religious discrimination. That began in this Parliament, with the Police (Northern Ireland) Act 2000, as a result of the 50:50 recruitment proposals in the 1999 Patten report, a measure I am now seeking to reverse with this Police (Northern Ireland) Bill. In introducing the Second Reading debate, I will ask a number of questions of the Minister. If he does not wish to answer them today, I am sure he will do so in writing. I will also be raising a question about the Patten report, which I put to the author, now the noble Lord, Lord Patten of Barnes, in writing in advance of today's debate.
	I do not believe that the Royal Ulster Constabulary discriminated against Catholics. Eight per cent in 1998 was too low, but over 16 per cent of senior officers were Roman Catholic. The RUC is most unlikely to have discriminated in recruitment but not in promotion. Does the Minister believe that there was a problem of discrimination that had to be addressed with the exceptional measures suggested in the Patten report? If so, what is the evidence? I think there were three reasons for the low representation of Roman Catholics in the RUC: first, republican intimidation; secondly, social ostracism by Roman Catholics; and thirdly, political abstentionism. Can the Minister point to any independent reputable study that measures these factors, and any others that academics might have suggested?
	The first factor, republican intimidation, waned from 1998, but it has not been eradicated. The second factor, social ostracism, also appears to be lessening. There are many Roman Catholic men and women in the PSNI today, and they are respected by an increasing element of the minority community. The third factor, political abstentionism, is more problematic. Nationalists have begun to share responsibility for policing, but they persist in pretending that Northern Ireland is on its way to a united Ireland.
	The proportion of Roman Catholics in the police has increased since 1999; 36 per cent of applicants are from the minority community. I welcome that. But this has to do with the Belfast agreement in general, and in particular the SDLP taking responsibility for policing. I welcome that. The 50:50 proposed by the noble Lord, Lord Patten, was not necessary, and has not worked. This is proved by the fact that 38 per cent of new recruits are female: an increase achieved in a non-discriminatory action plan.
	I suggest that the Roman Catholic figure would have improved without 50:50, just as the proportion of female recruits has risen significantly without reverse discrimination.
	Will the Minister contend that 50:50 was necessary to get Roman Catholics to apply? If so, is he saying that Roman Catholics do not want fairness, they want favouritism? That is a slander on my fellow citizens in Northern Ireland. Roman Catholics, like Protestants, want fairness; they do not want favouritism.
	There is no legal precedent for quotas in the United States or the European Union. If I am right, I expect the Minister to acknowledge that. If I am wrong, will he please tell your Lordships' House which states have lawfully created quotas to benefit what groups? Not even the radical Committee on the Administration of Justice called for 50:50. The noble Lord, Lord Patten, said he took advice from the equality industry and from legal counsel. No one has identified the givers of this incorrect advice. The noble Lord, Lord Patten, said Europe would not object to religious discrimination. Wrong. The prohibition was envisaged in a treaty, and emerged in an equal treatment directive in November 1999.
	The objection to 50:50 is simply that it involves direct religious discrimination, otherwise banned in a series of laws from 1973. Why was it right to ban religious discrimination over three decades in Northern Ireland, at the behest of nationalists with very little in the way of reasoned argument? And then for this Parliament to enact direct religious discrimination in 2000—against Roman Catholics and Protestants depending upon the numbers—simply because the Government found themselves under nationalist pressure to implement the Patten report in full.
	The pragmatic argument against 50:50 is that it does not work, as I have been told repeatedly by members of the policing family in Northern Ireland. Say the police want to recruit 200 trainees. If 50 Roman Catholics and 150 Protestants get through to the pool on merit, only 50 Roman Catholics and 50 Protestants may be recruited. There is 50 per cent under-recruitment. It does not matter how able the Roman Catholics are or not; and Protestants of ability have been rejected because they are of the wrong religion. However, the PSNI does not put it that way. It tells a rejected Protestant that other members of his community have done better than him or her. It does not say whether successful Roman Catholics did worse than he in the merit ranking.
	That has been the story with each of the recruitment competitions. But one—which the NIO does not seem keen to discuss—went the other way. There was a majority of Roman Catholics in the pool, but the police could take only twice the number of Protestants. A system designed to fast track Roman Catholics ended up discriminating against Roman Catholics!
	There is only one way to resolve the issue of whether higher-scoring Protestants are being rejected in favour of lower-scoring Roman Catholics. The Government should permit the PSNI to release the raw data, suitably anonymized, showing how each competition worked. I believe I am right. I have spoken to failed applicants. If I am wrong, prove I am wrong!
	I have therefore made a Freedom of Information Act application to the Chief Constable, Sir Hugh Orde, asking for the evidence. If it is released, we will know how 50:50 has worked. If the police, at the behest of the NIO, seek to rely upon one of the many exceptions, then reasonable people will conclude that the Government have something to hide.
	My Police (Northern Ireland) Bill—which had its First Reading on 16 January 2006—does two things. First, it abolishes the Patten report's quotas. However, it does not end the renewable Section 45 temporary provisions. Secondly, it empowers the policing board and Chief Constable to take direct action for,
	"Roman Catholics, women, ethnic minorities and any other relevant social group".
	The Patten report's 50:50 should never have made it into law. Unfortunately, Peter Mandelson got a Northern Ireland opt-out in the equal treatment directive in 2000, but that was probably too clever by half. That is why I have again called for rejected trainees—Roman Catholic or Protestant—to come forward. Lawyers are ready to go to the European Court of Justice in Luxembourg. Their arguments are about unconstitutionality in European law.
	Finally, I want to return to the Patten report because that is the reason the Government got themselves in a mess. In paragraph 15.11 of his report, the noble Lord, Lord Patten, stated that, having consulted the Fair Employment Commission (now the Equality Commission), and received a legal opinion from counsel, his proposal, while contrary to existing anti-discrimination UK law, would not be contrary to European law, unlike the proposal to have reverse discrimination in favour of women. The noble Lord, Lord Patten, is correct: 50:50 was contrary to anti-discrimination law; and the Police (Northern Ireland) Act 2000 had to suspend such legal protection.
	The noble Lord, Lord Patten, is also correct on the point that European law opposed reverse discrimination in favour of women, who were almost as poorly represented in the RUC as Roman Catholics were. So how did the noble Lord, Lord Patten, reach his conclusion that European law would not oppose 50:50? I have made another Freedom of Information Act application, this time to the Secretary of State, asking for the advice on which the noble Lord, Lord Patten, relied. He says that he consulted the Fair Employment Commission. I know the views of the late Sir Bob Cooper, and he was not an advocate of quotas. In evidence to the Select Committee on the European Union at the time, he showed that he knew quotas were outside the principles of European law. I am most reluctant, in the absence of evidence to the contrary, to believe that Sir Bob Cooper advised the noble Lord, Lord Patten, to go for 50:50.
	The noble Lord, Lord Patten, said that he also took the advice of counsel. I do not know who that barrister was, or whether he or she practises in Belfast and/or London, but I look forward to seeing the legal advice saying that 50:50 would be compatible with European law. It will have to explain how Article 13 of the European Communities treaty, a general anti-discrimination provision inserted at Amsterdam on 2 October 1997 and entering into force on 1 May 1999, would have no impact on Westminster legislation. The same opinion, referred to in the Patten report published on 9 September 1999, would also have to explain how 50:50 was compatible with the equal treatment directive, which emerged eventually from the European Commission on 25 November 1999. I believe that no competent barrister, advising in 1999, would have produced an opinion saying there would be no problem in Europe with 50:50. We now know that 50:50 was contrary to European anti-discrimination law as it was being developed in 1999 to 2000. The UK had to secure the opt-out in the equal treatment directive, permitting Westminster to legislate for 50:50.
	The Bill will abolish 50:50 and align the UK with the other member states in opposing religious discrimination. The Government are currently providing for the police in the Northern Ireland (Miscellaneous Provisions) Bill. If my Bill were to be obstructed in another place, I would table amendments to the Government's Bill providing for the abolition of 50:50. Meanwhile, the European Court of Justice might be looking at how exactly Peter Mandelson secured that crucial opt-out when he was Secretary of State for Northern Ireland. I commend the Bill to the House.
	Moved, That the Bill be now read a second time.—(Lord Laird.)

Baroness Harris of Richmond: My Lords, I thank the noble Lord, Lord Laird, for introducing the Bill, as it is always useful to revisit these issues. We on these Benches have spoken about our concern at the 50:50 recruitment policy, and we are particularly concerned at the effect that the policy has had on ethnic minority candidates for the police.
	Anecdotally, in 2003 my honourable friend the Member for Montgomeryshire visited various community groups from a number of ethnic minority communities in Northern Ireland. Members of the Indian community told him how the 50:50 quotas had discouraged people from ethnic minority communities from applying to the police. Because of the way in which the legislation is worded, candidates from ethnic minorities are considered in the non-Catholic pool of applicants, which is still larger in number than the Catholic pool. Some from ethnic minority backgrounds are reluctant to report hate crimes that are carried out against them as they believe, rightly or wrongly, that the police officer may not fully understand or empathise with their situation. They would feel more comfortable talking to a police officer from a similar background to themselves. I am therefore pleased that the noble Lord, Lord Laird, has tried to address that issue in Clause 2. It is something that the Government must turn their minds to. It is important that in trying to help one group the Government do not disadvantage other minority groups.
	Having said that, it is important to recognise that this recruitment policy has been effective in increasing not just the number of recruits from the Roman Catholic community, but the number of applicants. Prior to the recommendation from the Patten report being implemented, the highest percentage of applicants from Roman Catholics stood at 22 per cent. We now routinely see 36 per cent of applications coming from that part of the community. However, I am a little concerned that the figure seems to have stabilised and that we are not seeing further growth year on year, especially since across Northern Ireland the percentage of Catholics from the target age group is 44 per cent. Does the Minister agree with me that if Sinn Fein joined the policing board, and actively engaged and supported policing structures in Northern Ireland, this figure could rise further?
	We also have concerns about putting all other applicants together. Will the Minister consider looking at how we can ensure that those we need to recruit as a matter of urgency are highlighted separately as a percentage, thus enabling the clear concerns of the minority ethnic communities to be addressed?
	There is clearly some work still to be done. Therefore, I think the time is not quite right to repeal the recruitment measures we have talked about today. Although this is far from the ideal solution, I believe that the political situation in Northern Ireland is currently far too fluid to make such a change.

Lord Rogan: My Lords, I offer my vigorous support to a long-time friend and colleague, the noble Lord, Lord Laird, and fully endorse the Police (Northern Ireland) Bill, which is receiving its Second Reading. In particular, I commend this Bill for seeking to eradicate the inherently discriminatory practice of the 50:50 recruitment requirement for the Police Service of Northern Ireland.
	Northern Ireland had long been concerned with and, in more recent times, has embraced human rights. Years of conflict necessitated a strong discourse on human rights, which has subsequently found a home in the wide-ranging equality legislation which, indeed, is unique to Northern Ireland.
	However, it is of pressing and ongoing concern that we have the current recruitment requirement, which imposes a statutory quota of 50 per cent Roman Catholic and 50 per cent non-Roman Catholic on the Police Service of Northern Ireland. The initial difficulty with this quota is the effect of the two classifications, which bundles all non-Roman Catholic applicants into the one grouping and thus creates a "privileged" position for Roman Catholic applicants. This "privileged" position is often defined as positive discrimination.
	Northern Ireland stands alone as the only country ever to have used discriminatory quotas in employment. This method of recruitment does not exist within the realms of either the United States of America or European jurisprudence. It must be emphasised that if Northern Ireland is to progress and move beyond the confines of its complex history, it must take its place beside its neighbours with a mutual respect for equality of opportunity
	This presently is not the case. Northern Ireland receives special treatment through the use of discriminatory employment practices in the Police Service of Northern Ireland. Quotas do not imbue our present, future or past with dignity, but seek to undermine existing human rights principles with an unfair practice which I feel patronises the effective progress that has been achieved through targets and greater promotion of public awareness of a career for young people in the Police Service of Northern Ireland.
	This has been more than illustrated by the surge in numbers of women joining the Police Service of Northern Ireland—a feat achieved through greater awareness and a shift in the culture of the Police Service of Northern Ireland. This system is fair and progressive and should be implemented in relation to recruitment of individuals from all sectors of Northern Ireland society, including individuals from ethnic minorities—such is the increasingly culturally diverse identity of Northern Ireland. We must move away from the ineffective and stringent pull of quotas, which do not reflect the contours of Northern Ireland, or indeed, human rights doctrines.
	In terms of financial efficacy, I have been reliably informed that it has cost in excess of £80 million to run the 50:50 recruitment requirement scheme in Northern Ireland. Will the Minister confirm that this figure is correct?
	The quota system also suffers from the effects of Sinn Fein/IRA refusing to endorse the Police Service of Northern Ireland. A more effective means of nurturing and maintaining cross-community support could be achieved through greater public awareness of the changes that have been brought about by the increased numbers of women in the PSNI and the shifts in attitude that this has brought about.
	People in Northern Ireland, irrespective of their community background, do not welcome the patronising effects of the current system. We certainly do not want a special legal position that manipulates our legal system by opting out of universal human rights standards in relation to employment. We want the dignity of being exactly the same as every other citizen of the European Union and every other signatory state of the European Convention on Human Rights.
	As I have mentioned, Northern Ireland has long been concerned with human rights, and this has duly informed the equality of opportunity that exists in the Northern Ireland job market today. It must be stressed that equality of opportunity irrespective of religious background has been achieved without the need for quotas, but with properly implemented and wide-ranging equality and employment legislation, underpinned with international human rights principles, notably from the European Court of Human Rights and the European Court of Justice.
	I recognise that I am going over my time, but I will take one moment to finish. A further point to note is the recent development in the recruitment policies and practices of the Garda S-ochána in relation to Northern Ireland, which is bound to have a destabilising effect on the recruitment requirements in Northern Ireland. As the Minister may well be aware, there was a large recruitment fair in Belfast yesterday, and the Garda S-ochána had a stall there for the first time in its history.

Baroness Farrington of Ribbleton: My Lords, I have to remind the noble Lord that the maximum time is four minutes when speaking in the gap. He has now taken six.

Lord Rogan: My Lords, I will finish by saying that the active recruitment of young men and women from Northern Ireland to the Garda S-ochána will leave the 50:50 recruitment for the Police Service of Northern Ireland struggling even more on its very weak feet.

Lord Glentoran: My Lords, I thank the noble Lord, Lord Laird, for bringing this Northern Ireland Bill to your Lordships' House. It is an excellent sign of the times that a member of the Unionist Party has thought to bring a Private Member's Bill concerning Northern Ireland to your Lordships' House. We have some sympathy for the case made by the noble Lord. From the outset, we have had difficulty with the 50:50 recruitment provisions contained in the Police (Northern Ireland) Act 2000. They are deliberately and clearly discriminatory—a point that has been made by everyone who has spoken today. They have caused considerable anger among the broader unionist community—a point that politicians today tend to overlook, but which is making life increasingly difficult for unionist politicians in reaching any form of agreement with republicans.
	Let me be clear on one thing. We wholeheartedly share the objective of increasing the proportion of police officers who are Roman Catholic, but we absolutely reject any inference that the former Royal Ulster Constabulary was in any way anti-Catholic. Many Roman Catholic officers served in the RUC with great bravery and distinction. We all know that the greatest impediment to recruitment of Catholic officers was intimidation or the threat of intimidation by republican paramilitaries—in particular, the IRA. Even today, the IRA refuses to allow its followers to accept the judicial processes of the United Kingdom, and if it can prevent them joining the PSNI, it does so.
	That is something that the Patten report of 2000 unaccountably played down when discussing the so-called turn-off factors against Roman Catholics joining the police. Although that threat has diminished, it has regrettably not totally gone away. Dissident republicans have continued day by day to target Roman Catholic recruits and members of the district policing partnerships. The mainstream republican movement, as I have said, still refuses to endorse the police and the criminal justice system. I have no doubt that the 50:50 provisions have helped to achieve a significant increase in the number of Catholics in the PSNI from about 8 per cent in 2001 to almost 20 per cent today. Incidentally, however, we might shortly reach the same proportion of Roman Catholics in the PSNI that made up the ranks of the Royal Ulster Constabulary in the early 1920s. I have no doubt that the proportion will increase further if the laws continue to be in force, but the question has never been about the end—rather, it has been about the means and whether there is not a better way to achieve this objective.
	The noble Lord, Lord Laird, pointed to a number of the problems with the current 50:50 system, in particular the resentment in the Protestant community. It is discriminatory, and it has led to many perfectly well qualified Protestants having their applications to join the police turned down in favour of less well qualified Roman Catholics. I have had a good deal of anecdotal evidence of this myself in Northern Ireland, and I would be grateful if the Minister could tell us whether there are official figures for the number of Protestants disadvantaged by the system in this way. The Opposition also find it unforgivable that people pass all the tests and reach the pool of qualified applicants, only to fall foul of the 50:50 quota system and—this is my point—then having to go all the way back to square one should they wish to continue with their ambition to serve in the police.
	Surely, as we have argued before, there should be some kind of reserve list for those who are suitably qualified but have missed out on final selection because of the 50:50 rule. Could the Minister give us one good reason why these people could not simply be fast-tracked back into the pool? As a matter of interest, how much is all this extra work and bureaucracy costing? Then there is the crudity, which noble Lords and the noble Baroness, Lady Harris of Richmond, have already referred to this afternoon, of dividing applicants into Roman Catholic and non-Roman Catholic. As a result, Taoists, Buddhists, Sikhs, Muslims and many members of other religions—Northern Ireland, as the Minister well knows, has a growing Asian community—are placed at a serious disadvantage. Surely this is plainly absurd.
	At the time of the 2000 Act, we supported amendments that would have placed on the chief constable a statutory duty to promote measures designed to achieve a police service that was more representative of the society from which it is drawn and which it serves. We continue to believe that this is a fairer way of increasing Catholic representation in the PSNI. The 50:50 provisions have been in place for some years now. They are described in Part VI of the 2000 Act as temporary provisions. Those familiar with Northern Ireland will know that things that are described in such a way almost always become part of the furniture and assume an air of permanence.
	I would therefore be grateful to know for how long the Minister expects these wholly exceptional and unpalatable measures to be in force. Is it the Government's intention to renew them for another three years once the current provisions lapse? Is it not time to begin to consider another way of achieving the wholly laudable aim of increasing the numbers of Roman Catholics in the PSNI, and having a little original thinking from the Government?
	I finish by returning to the point about intimidation that I touched on earlier. No one doubts that much has changed in policing in Northern Ireland in the past six years. Yet there is unfinished business. In our view, policing is central to any agreement that restores the devolved institutions to Stormont.
	Put bluntly, there can be no place in government for those who do not just refuse to take up their seats on the Policing Board or the DPPs, but refuse point blank to support the police force and judicial processes. We need to see an ideological shift from Sinn Fein, so that it recommends policing as a worthwhile career for people who live in what would be seen as mainly republican communities. Ultimately, that would surely be the best way of guaranteeing Roman Catholic, republican, nationalist or a wide range of minority participation in the police, rather than the blatantly discriminatory and heavy-handed measures that we are discussing today.

Lord Rooker: My Lords, I am grateful to the noble Lord, Lord Laird, for introducing the Bill, as he has every right to do, because it gives us an opportunity to debate one of the most important services in the community, the police. Indeed, the subject of the temporary provisions of 50:50 recruitment—I emphasise "temporary"—and the resultant change in the composition of the police service that has occurred in the past few years is one of the most significant reasons why public confidence in policing is increasing across most of the community.
	From the history of recent years, I suspect that more than any other matter policing has been the subject of debate, and certainly of disagreement and division. It is a sign of how much we have changed recently that we have published a consultation paper that looks forward to returning policing to a locally elected Assembly, to be accountable to the people of Northern Ireland. Later this Session, not too far away, we will have legislation in this House to that effect. Policing in Northern Ireland has undergone significant change. That change has been possible only through the courage and dedication of the men and women who have served the community as police officers over the years. The serious disorder witnessed during last summer and September shows that it is too early to declare that Northern Ireland has become a normal society for policing, but we very much hope that policing is moving into an era which can see police officers patrol normally and help the community without fear of attack or abuse.
	The support of the entire community—it has been implied through many speeches today—for police officers serving that community will be important to achieve a normal society. Everyone has a part to play—the community, elected representatives and the Government. Taking the points that the noble Lord, Lord Glentoran, made, I shall repeat what I have said in this place before. If you do not support the police, it means that you support the criminals—the muggers, the rapists, the burglars, the beaters-up of old women and older people, the crooks, the spivs and the racketeers. It means that you support those who try to rip people off and make their lives a misery. There is no grey area here; it is black and white. That is the situation in a normal civic society; it is the norm in the rest of the UK and there is no reason why it should not apply to Northern Ireland. If you are not playing a part, you are on the side of those who are there to cause disruption.
	Much has been achieved in policing since the Belfast agreement and the subsequent Patten report that heralded a new beginning for policing in Northern Ireland. The list is impressive, although one would not think so from some of the negative speeches and twisted statistics that we heard today. The new Policing Board came into force on 4 November 2001. The board, which has been formed with cross-community participation, has broad powers to hold the police to account, and has to date established itself as a powerful and credible organisation committed to ensuring the effective policing of the whole of Northern Ireland. There were predictions of doom from many quarters. The board has overcome and challenged those predictions, and dealt with many difficult issues relating to policing in Northern Ireland. For example, there were those who claimed the board could never agree on a new badge but, on the recommendation of the board, a new badge and uniform were introduced to the Police Service of Northern Ireland on 5 April 2002.
	The board appointed a Chief Constable, and Sir Hugh Orde has shown his determination to strengthen and build upon this "new beginning" to policing. The board has also published a code of ethics and issued annual policing plans, the most recent of which will be launched next week. Human rights lie at the heart of policing with a new oath, the appointment of a human rights lawyer to advise the PSNI and the expansion of human rights training for all police officers and civilian staff. In all these areas, the board has demonstrated a capacity for reaching decisions on a mature, sensitive and partnership basis. I want to put on record today the appreciation of the Government and, indeed, this House for the contribution that the board members have made to the new beginning in policing, particularly as we approach the reconstitution of a new board in April.
	The establishment of district policing partnerships has provided an important step in helping local communities to gain a greater sense of ownership in relation to their policing arrangements. The ongoing reports of the oversight commissioner, Al Hutchinson, who has continued to oversee the process of change, have provided further assurance that the board and the Police Service of Northern Ireland have made vast progress. He confirmed last June that over 65 per cent of the 175 Patten recommendations have been fully implemented and that the remaining recommendations will be achieved in time. Although the establishment of her office pre-dates the Patten report, the work of the independent police ombudsman has been an important step in helping to increase the transparency of the police service.
	The structures we now have in place—the Policing Board, the district policing partnerships and the police ombudsman—are envied throughout the world. When people look at what is happening in Northern Ireland they can see positive progress. These structures provide a solid basis for accountability and give the Northern Ireland community the opportunity to have a real say in local policing. Policing with the community is what we all want; it is part of a normal civil society. We want policing that is responsible to local community priorities, that deals courteously and fairly with every member of the public and which values the contribution of the community to securing a just and safe society. We believe that every person and every elected representative in Northern Ireland should be able to support that and work towards that goal.
	That is what we are achieving, faster in some areas than in others. Public confidence in policing is increasing across most of the community and crime figures last year were at their lowest for six years. Although the number of reported crimes has increased slightly this year, we believe that reflects a greater willingness within local communities to work alongside the police in the reporting and detection of crime.
	As I have said, the Government firmly believe that the temporary provision of 50:50 recruitment is one of the most significant reasons why public confidence in policing is increasing across most of the community. If I did not know before I came here today, I know now that some noble Lords harbour principled misgivings about this measure, but when the Independent Commission on Policing in Northern Ireland, led by the noble Lord, Lord Patten, made its report, it reflected the agreed principle of the Belfast agreement that the police service should be representative of the society that it polices. The Patten report pointed out in paragraph 14.2 that,
	"real community policing is impossible if the composition of the police service bears little relationship to the composition of the community as a whole".
	It continued:
	"If all communities see the police as their police, there will be a better, cooperative partnership between community and police, and therefore more effective policing".
	The report highlighted the imbalance between the number of Catholics and Protestants as "the most striking problem"—not the only problem, but the most striking problem—in the composition of the police, above issues of gender and ethnic minority representation, which the commission acknowledged were important, and I acknowledge to those noble Lords on all sides of the House who spoke to today that they are still important points.
	The report recommended the recruitment of Protestants and Catholics on an equal basis as an exceptional measure to try to provide a more representative police service within a reasonable timeframe. The Royal Ulster Constabulary was a fine police service with many attributes, to which I am proud to pay tribute on behalf of the Government and the House. But, despite much effort, it was not representative of the community. I am not going to discuss what the composition was, because I am not briefed and do not think it is relevant. It was not always counted as it is today—I refer to the 1920s, 1930s, 1940s, 1950s and 1960s. I realise that there were Catholic officers serving with distinction; there is no question about that. But the fact is that when the noble Lord, Lord Patten, looked at it, only 8.3 per cent of regular officers were from the Catholic community.
	I recognise that the temporary provisions remain an anathema to the noble Lord, Lord Laird, and some of his colleagues who, as we have heard today, are keen to emphasise and, regrettably at times, exaggerate the number of non-Catholics who have been denied employment as a result. It is not something I deal with as a Northern Ireland Minister on a daily basis—it is the responsibility of one of my colleagues—but I have nevertheless seen the outlines and press reports with clearly exaggerated figures of people who have not gained admission to the police service. It is true, and I have to be clear on this. There have indeed been a number of candidates who have not been appointed due to the 50:50 provisions. But the vast majority of unsuccessful applicants are not appointed simply because demand to join the PSNI is astronomically high—it is nothing to do with the 50:50 provisions.
	Part of the reason demand is so high is the extra confidence people have that it is worth while to serve one's fellow citizens in the community. People are coming forward in greater numbers than ever before. In the first eight competitions there were over 28,000 applications from non-Catholics—I accept that this covers everybody who is non-Catholic; they are lumped together, as the noble Baroness said. Of those, only 541 have been rejected directly as a result of these temporary provisions. In other words, less than 2 per cent of all non-Catholic applicants will have been rejected as a direct result of the 50:50 provisions. The figures that I have seen in newspaper reports—and sometimes bandied about this House—suggest that there are hundreds or thousands of people suffering discrimination because of the 50:50 provisions but the vast majority figures in percentage terms are frankly not true. That must be said to the people of Northern Ireland. I call upon the editors and journalists to challenge the politicians who give them these figures on their source. The figures are clear: 541 of 28,000 applications from non-Catholics were rejected due to the 50:50 provisions. The rest did not gain entry to the police service for other reasons.
	The 28,000 figure, of course, refers to the non-Catholics. There have been 50,000 applications from across the whole community since these provisions were introduced; 50,000 people queued up to join the Police Service of Northern Ireland because of the culture change. I am not claiming that the 50:50 provisions have caused that, but people can see that it is worth while as part of that and other changes in Northern Ireland. Part of the reason—it may be a side effect—is the increase in the number of females. It had not been targeted in that way, but they have realised that there is an opening for a wider section of people.
	In the eighth campaign for recruitment, 1,100 of these candidates successfully passed all stages of the process, but there were only 220 appointments. On that basis, it would be 110 each for Catholics and non-Catholics. For the vast majority of those who did not make it, that has got nothing to do with the 50:50 provisions. The reality is that there were far too many applications for the number of vacancies. That is why there are massive numbers of qualified candidates of both Catholic and non-Catholic backgrounds who were not successful. In other words, there is a limit on recruitment. It is not that any qualified applicant can join. That is not the case. There is a limit on numbers. But it is a reason to be proud of the confidence shown in the structures.
	The Oversight Commissioner has rightly acknowledged that the recruitment campaign has been a success, providing the Police Service of Northern Ireland with the opportunity to select only the most highly qualified recruits, which is an enviable position for any police organisation in today's competitive labour market. We firmly believe that these temporary measures are justified in order to correct an acute historical imbalance in the composition of the police in Northern Ireland. But I assure your Lordships' House of one thing—they will not stay in place a day longer than is necessary.
	The government policy enunciated in the past is firmly committed to achieving a progressive increase in the Catholic representation in the police service. Our stated aim is to increase Catholic representation by 30 per cent by 2010–11. Obviously, there is a review on a three-year basis. We are well on course to achieve that increase. In less than five years, under the 50:50 temporary provisions, Catholic composition among regular officers has risen from 8.3 per cent to 19.14 per cent. In the same time, female composition has risen from 13 per cent to more than 20 per cent. Your Lordships are aware that these temporary exceptional measures are reviewed triennially and will expire unless specifically renewed by an order. The current order allows for their continuation until 30 March 2007.
	I will turn to the Bill in a moment. But, whatever the outcome, and whether or not the House is able to debate the Northern Ireland (Miscellaneous Provisions) Bill, which will start its passage in the other place next week, next February or March both Houses will be able to debate in greater detail the provision of the 50:50 temporary arrangement, because it comes up for renewal.
	In the short time available, I will answer some of the detailed points. The noble Lord, Lord Glentoran, raised rollover and people who qualify but do not get in, staying in the pool. The Police Service of Northern Ireland, together with the Northern Ireland Office, looked carefully at that issue and consulted the Equality Commission. At that time, it was concluded that it was not in the interest of applications or the police. Rollover would result in an ever-increasing surplus of unsuccessful candidates in the pool—one can see how the numbers would grow from the figures that I have given. They would have little or no prospect of appointment, whereas evidence suggests that candidates who repeat the recruitment process generally improve their merit score and, therefore, their chances of selection. But their chances of selection, however good their score, are always low whether they are Catholic or non-Catholic because of the vast numbers applying for a small number of positions. Another reason is that candidates would also have to redo the medicals and vetting elements periodically as their situation might change. There would not be significant cost benefits for the Police Service of Northern Ireland.
	The noble Lord, Lord Rogan, asked about costs. I do not recognise his £80 million figure. In due course, if he can say where he got that from, I will do my best to answer him. In 2002–05, costs were in the region of £13 million, with an average of £10,000 per trainee. That is a three-year figure, but it also applies to the single year figure that I have in my other notes. Those figures are nowhere near the £80 million figure.
	I do not deny that these situations are expensive, but, on average, the Police Service of Northern Ireland receives 13,000 applications a year for only 440 trainee constable posts; that is, 220 appointments times two. With that level of applications per year, whatever the system, there will be massive numbers of qualified, good people who want to serve their community, but who cannot. It has nothing to do with the 50:50 arrangement.
	The noble Lord, Lord Laird, mentioned a freedom of information request. We will follow that up, but my officials are not aware of that at present.

Baroness Harris of Richmond: My Lords, I am grateful to the Minister for allowing me to intervene when time is short. Would he address the particular concern I raised? As he was coming to a close, I did not think that he would touch on it. Will he look at ways to ensure that those who we need to recruit as a matter of urgency are not lumped in with the others? They should not be put in with the applicants who come under the "or other" category. Would he consider highlighting separately those groups as a percentage?

Lord Rooker: My Lords, I cannot do that today, but when either I or whoever else on behalf of the Government address the renewal of the order, I can assure the noble Baroness that I will come to the House armed with the necessary statistics. Indeed, if we can we shall make them available before the debate. That makes sense because, as the noble Lord, Lord Glentoran, said, the community in Northern Ireland is changing. Enormous numbers of people from eastern Europe have arrived; there is a substantial Chinese community and others. We want a police service that represents as widely as possible the society it serves. The Patten report highlighted that the overwhelming issue was one of Catholic and non-Catholic representation, but the other issues of gender and ethnicity are also important.
	The noble Lord, Lord Laird, has brought forward a Private Member's Bill. It is not a government Bill and therefore it is my job not to respond to its detailed minutiae, but to say where the Government stand. We have considered the Bill carefully, but we are against it. Nevertheless, this House does not vote on the Second Reading of Private Member's Bills. This is a major policy area, but it is clear from our analysis that if we were to abandon the 50:50 policy, we would not achieve the Government's aim of increasing Catholic participation to 30 per cent by 2010–11. Indeed, if the policy were to be abandoned now, our projections indicate that we would be likely to see a Catholic composition of less than 22 per cent.
	Bearing in mind the changing culture, greater stability and the wider acceptance of the police in Northern Ireland, it is important to ensure that people do not get the wrong idea. The noble Lord, Lord Laird, is absolutely entitled to bring forward his Bill, and I would fight to the end to ensure that Back-Benchers—I will be one myself again one day—have the right to promote legislation. But I have to say to the people of Northern Ireland that this Bill will not become an Act. I want the 50,000, the people who have been recruited, as well as the people who have not been successful in being recruited—who are in the pool and awaiting the coming change—to understand the position. Whatever happens to the noble Lord's Bill as it goes through all its stages in this House, it will not become an Act of Parliament, certainly in this Session. That is because it will not get through the House of Commons. There is a simple reason for that: it is a Private Member's Bill. All Private Members' days in the House of Commons have been allocated and balloted Bills take priority. I have checked the figures. Every single available Private Member's day in the Commons is stacked with Bills from Members of the Commons. This one would come at the end and will have no time allocated to it. Therefore the Government will object to it, so there is no prospect of this Bill becoming law. I do not want any scare stories run in the Northern Ireland press that because this Bill had a Second Reading today, it will become an Act and the 50:50 policy will be abandoned. It will not, because this Bill will not become an Act of Parliament during this Session. It cannot get through the other House of Parliament. I have to make that absolutely clear.
	Notwithstanding that, it is right that the issue is debated. Whatever happens on the miscellaneous provisions Bill, we will be able to debate the issue in rather more detail when we come to renew the order next year. Bearing that in mind, while I cannot recommend that the House supports the Bill, of course it does not object to the Second Reading of Private Member's Bills.

Lord Laird: My Lords, I am most grateful to noble Lords and the noble Baroness for taking part in the debate. I shall not detain the House for much longer at this time on a Friday afternoon. I want to say just that I am aware of the keen interest taken by the noble Baroness, Lady Harris of Richmond. She has always been a very good friend of Northern Ireland, and she is particularly interested in policing matters both on the mainland and in Northern Ireland. Her point about ethnic groups was well made and I much appreciate it. But a point she made comes through very clearly when taken with the Minister's remarks, many of which I did not fully understand. She referred to the use of the figures for women. Without a 50:50 system of discrimination, according to the Minister's figures, the figures for female members of the police service have gone up to more than 20 per cent. Yet when it comes to 50:50 recruitment and discrimination on religious grounds, the number of Roman Catholics has increased to only 19 per cent. Doesn't that put that argument to bed? Isn't that QED time? Are we not talking here about comparing two different types of recruitment? One is a positive system of recruitment, the other is discriminatory; one is shown to have worked better than the other, yet the Government are determined to stick to the one which discriminates against people on the grounds of religion.
	I did not fully understand a lot of what the Minister said; I think some of it may not have been terribly relevant to the Bill. I did not fully understand his figures, but I endorse his point about more clarification. Let us get more of this information into the public domain. When we ask for information about how the recruitment is carried out and about the merit pools, the various numbers of people and the common marking system in the merit pools, we do not get it. Obtaining that information and placing it in the public domain may help people.
	I did not fully understand the noble Lord's remarks about the number of people who have failed to enter the police force on the grounds of religion. I think the figure he gave was 551—let us say it is. That is 551 people in Northern Ireland who have been discriminated against on the grounds of their religion.

Lord Rogan: Hear, hear.

Lord Laird: My Lords, human rights is not a collective but an individual matter. Individuals have human rights; if you discriminate against one person, you are seriously abusing the human rights of everyone in society. According to the Minister, 551 people in Northern Ireland, if I remember rightly—I will have to check that figure—have been discriminated against—

Lord Rooker: My Lords, the figure was 541 out of 28,000 non-Catholics. It so happens that 93 per cent of all Catholic applications have been unsuccessful as well.

Lord Laird: My Lords, I accept that I inflated the figure by 10—I am sorry.
	If anybody has been discriminated against on the grounds of religion, it should be a concern of this House. It should be a concern of this Parliament. It should be a concern of people throughout the European Union who have signed up to human rights measures in many ways over a number of years.
	I was a little concerned about the Minister's use of the word "negative"; I felt he was suggesting that my noble friend Lord Rogan and I take a negative approach to these matters. Let us be absolutely clear: the only thing we are objecting to is the 50:50 arrangement. We are totally on the side of the police; we are totally on the side of modernising the police. I suggest that if the Minister had been to as many policemen's funerals as we have, he would be slightly more circumspect when it came to criticising us for being negative. My next-door neighbour was shot near where I live; the only reason he was shot was because he was a very honourable, highly respected, Roman Catholic member of the police force. The Minister should think twice before he accuses any of us of being negative about policing. We are not negative about policing; we are negative about the lack of human rights and the fact that in Northern Ireland right now, people are being discriminated against on the grounds of religion.
	On Question, Bill read a second time, and committed to a Committee of the Whole House.

House adjourned at nine minutes past four o'clock.